WILDCAT HAVEN ENTERPRISES CIC AGAINST ANDY WIGHTMAN [2020] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> WILDCAT HAVEN ENTERPRISES CIC AGAINST ANDY WIGHTMAN [2020] ScotCS CSOH_30 (11 March 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_30.html Cite as: [2020] ScotCS CSOH_30, [2020] CSOH 30, [2020] SLT 473, 2020 GWD 11-159

[1] In this action, the pursuer alleges that it suffered loss and damage as a result of the

defender publishing defamatory material on internet blogs, Twitter and Facebook. The

pursuer seeks damages in the sum of £750,000 and also seeks interdict to prohibit the

publication of such material. The action called before me for a proof before answer. On

behalf of the pursuer, an application was made under the relevant procedural rules to allow

lay representation by Mr Paul O’Donoghue, who is a director of the company. The motion

was opposed by senior counsel for the defender. I was satisfied that the requirements of the

[2] The defender published blogs on his website which made statements about the

pursuer. The pursuer is a private limited company registered in England. It is the

fundraising vehicle for Wildcat Haven CIC (“WHCIC”), a company which has as its object

the conservation of Scottish wildcats. The pursuer raises funds for WHCIC by various

means, including selling small souvenir plots of land. The defender’s website is entitled

“Land Matters…the blog and website of Andy Wightman”. He published two blogs which

are said by the pursuer to contain defamatory statements. He also published or posted

certain other allegedly defamatory statements on the social media platforms of Twitter and

Facebook. The pursuer also refers to comments posted by others on the defender’s website

as being defamatory, for which the defender is said to be responsible. In order that the

numerous allegations of defamation made by the pursuer can be properly understood and

viewed in context, the blogs, comments, tweets and Facebook post are set out in the

Appendix to this Opinion. Rather than set out every tweet or comment, I have identified

only those that have any real bearing on the matters raised in the action. The Appendix

follows the order in which the allegations appear in the pursuer’s pleadings. When I come

to discuss the allegations pled, I shall refer to the relevant section of the Appendix.

However, when narrating below the parties’ submissions on the allegedly defamatory

imputations, and giving my reasons, a number of the statements made are set out. The

identities of the various individuals referred to in the blogs, or who made comments or

tweets, are not of particular relevance. I have therefore removed the names or profiles of

those persons. Where hyperlinks appear in the blogs, these are underlined. I have had

regard to the full content of the published material relied upon by the pursuer in its

[3] Blog 1 (set out in the Appendix, section 1) was published on 28 September 2015. The

Below these words, there was a box or graphic stating “Wildcat Haven is supported by…”

and containing the logos of firstly, Highland Titles Limited (“HTL”), and secondly

Volkswagen. The blog then went on to refer to Wildcat Haven as a project designed to

protect the Scottish wildcat. It referred to one of the sponsors being HTL, a company based

in Alderney that is wholly owned by a charitable trust, Highland Titles Charitable Trust of

Scotland (“HTCTS”), registered in Guernsey. The blog mentioned that HTL appeared to

have established a very close relationship with WHCIC and with the pursuer, and explained

aspects of that relationship, including that HTCTS was identified as the body which would

receive the assets of the pursuer should it be wound-up. It stated that Wildcat Haven had

adopted Highland Title’s dubious methods of selling small souvenir plots of land and

claiming that the purchaser became the owner. Reference was then made to a letter from a

university law professor to a newspaper, which explained the legal position in relation to

ownership of souvenir plots. The blog also mentioned issues about the location of the plot

of land from which the pursuer was selling souvenir plots, including that the plot was part

of land (75 hectares in area) owned by HTL. An addendum was made to the blog, giving

details of discussions between the defender and a senior official in the Channel Islands

[4] At 3 pm on 30 September 2015 the defender added what was described as an

“Update” to blog 1 (Appendix, section 2). The update set out a response to blog 1 which had

been received by the defender from a director of the pursuer. Among other things, the

response stated that: HTCTS was to be replaced by another entity as the body to receive

assets in the event of the pursuer being wound up; that the sale of souvenir plots was “a bit

of fun”; that the “FAQ” on the Wildcat Haven website outlined that registration of souvenir

plots was legally impossible; and that HTL had gifted part of its land to the pursuer. The

update then went on to list a number of questions posed to the director of the pursuer by the

defender, the last of which was whether “Highland Titles” received any payment or

[5] In blog 2 (Appendix, section 3), published on 24 February 2016, the heading was

“Highland Titles day” followed by the same graphic as that in blog 1. Blog 2 contained a

hyperlink to blog 1 and referred to it as being a blog about HTL’s latest effort to raise lots of

money. Blog 2 referred to the sale of souvenir plots and the controversy generated by doing

so. It also referred to the financial affairs of HTL being opaque and it being registered in “a

secrecy jurisdiction”. It named an individual who was said to be a director of both HTL and

the pursuer, as well as being a trustee of HTCTS. The blog then referred to HTCTS as being

the designated body to become the potential recipient of assets from the pursuer. The

questions asked by the defender in the update to blog 1 were repeated and further

comments by the defender about the questions were also set out. Reference was again made

to the 75 ha site and the income that would be generated by the sale of plots on it. The blog

went on to say that Wildcat Haven had been seeking to become involved in the community

acquisition of a Forestry Commission forest near to Loch Arkaig. It ended with a statement

that in early June 2015 “Highland Title’s bankers and corporate service providers in

Guernsey gave notice of the termination of their services”. It then stated that Wildcat Haven

[6] The pursuer avers that read in isolation and in conjunction with the comments

generated by them (noted below) blog 1, the addendum and update, and blog 2 made eight

separate defamatory imputations, which I deal with in turn later.

[7] The pursuer goes on to aver that on 30 September 2015, after the publication of

blog 1, the defender posted a number of tweets on his Twitter account (Appendix, section 4)

addressed to “@wildcathavenuk” and asking questions about points mentioned in blog 1.

The pursuer avers that these questions demonstrated the defender’s lack of knowledge

about the pursuer’s activities at the time he published blog 1 and his failure to seek comment

from the pursuer on the allegations in blog 1. The last question is said by the pursuer to

show “that the defender had no factual basis for his allegations about a financial link

between the proceeds of the pursuer’s sales and HTL at that time”. The pursuer goes on to

aver that the defender also posted tweets on 29 September 2015, three of which are

identified (Appendix, section 5). The pursuer avers that these tweets, taken in the context of

all of the defender’s comments and statements about the pursuer, showed that the defender

was not simply commenting on the practice of selling souvenir plots. Rather, he was falsely

accusing the pursuer of “funnelling” the proceeds of sale of souvenir plots into tax havens.

The second of the defender’s tweets of 29 September 2015 was said to be defamatory in its

[8] The pursuer then refers to a Facebook post by the defender dated 25 February 2016

(Appendix, section 6), which contained a link to blog 2. The pursuer avers that the post

contained a defamatory statement that Wildcat Haven, and by innuendo the pursuer, had

[9] The pursuer also lists in its averments a number of comments from third parties

(made following blog 1) published on the defender’s website. These comments (Appendix,

section 7), posted on 29 and 30 September 2015, are also said by the pursuer to be

defamatory, whether taken in their own right or read in conjunction with the blogs, and said

to have the same meaning as two of the eight defamatory imputations alleged to have been

[10] Averments are made by the pursuer about tweets by the defender between

16 November 2012 and 3 May 2017 (Appendix, section 8). Given the number of tweets

mentioned, and the fact that they refer largely to HTL and HTCTS, I do not set them out in

full in the Appendix. Several of the tweets refer to “Highland Titles” being, or operating, a

“scam”. Other tweets refer to the bankers and corporate service providers of Highland

Titles having withdrawn their services. The pursuer avers that the defender did not rebut or

deny the suggestions made in these tweets by the others. These tweets were also alleged to

be defamatory of the pursuer in the same manner and extent as two of the eight defamatory

[11] The pursuer avers that the offer for sale of souvenir plots of land made on its website

did not represent that persons who bought these plots would obtain a real right to the land.

The sales are said by the pursuer to be a marketing device which enables supporters of

Wildcat Haven to donate funds in a novel, imaginative and light-hearted way. Such sales

are said to be a commonplace method of raising funds for charitable and other causes. The

pursuer’s website stated that members of the public were being asked to help the pursuer by

actually buying part of the land that Wildcat Haven planned to conserve. It also stated that

“It’s a bit of fun, being Laird of an estate, even if the estate is only a square foot of land. You

may [style] yourself as Lord or Lady of Wildernesse…” At the time of the publication of

blog 1, the land comprising the souvenir plots was owned by HTL. Subsequent to the

publication of blog 1, HTL gifted a parcel of land to the pursuer. The pursuer further avers

that the defamatory material centred on the activities of the pursuer and not simply on the

practice of selling souvenir plots. The material inaccuracies at the centre of the defender’s

defamatory statements are said to be that the proceeds of sale of souvenir plots sold by the

pursuer were not being used to fund wildlife conservation but were being paid to HTL and

were being diverted into an offshore tax haven away from public scrutiny.

[12] The sum claimed in damages by the pursuer is £750,000. The pursuer avers that as a

result of the defamatory imputations contained in the published material it has suffered

reputational damage and financial loss. The losses are said to include that prior to the

publication of blog 1 the pursuer was involved in a proposal to purchase from the Forestry

Commission an area of forest, as a community venture in partnership with a body called

Arkaig Community Forest (“ACF”), and that opportunity has been lost. The purchase was

to be funded by a grant of £500,000 from HTL. The pursuer alleges that, as a result of blog 1

and the comments which it generated, the proposal fell through because ACF immediately

withdrew from the proposed partnership. The pursuer also avers that the volume of sales of

souvenir plots diminished straight after the publication of the blogs.

[13] The defender avers that the words used in the various material that was published

were not capable of bearing, and in any event did not in fact bear, the meanings complained

of by the pursuer. The defender also avers that the blogs represented the defender’s honest

comment on matters of public interest, conveying his opinions, honestly held by him. The

facts upon which the comments were based were both accurately stated and sufficiently

referenced. The defender also avers that, in any event, the blogs were published on an

occasion of privilege and fell within the defence of Reynolds privilege (derived from Reynolds

v Times Newspapers Ltd and Ors [2001] AC 127). The trade in souvenir plots is said to be a

matter of public interest and concern. In relation to the alleged loss, the defender avers that

the true reason why ACF withdrew from the partnership proposal was that the pursuer had

failed meaningfully to engage with its requests for further information. The defender also

denies causing any loss relating to the volume of sales of souvenir plots.

[14] The blogs make reference to the concept of a Community Interest Company (“CIC”),

and that the pursuer is such a company, as is WHCIC. A CIC is required to use its assets,

income and profits for the benefit of the community it is set up to serve. It is also a

requirement of a CIC that it has in its articles of association an “asset-lock” provision, which

includes that, in the event of winding-up, the assets of the CIC will be transferred to a

nominated “asset-locked body” that is another CIC, or a charity, or a body established

outside Great Britain that is equivalent to a CIC or a charity. At the time of publication of

blog 1, HTCTS (which is associated with HTL) was the designated asset-locked body of the

pursuer. Following the publication of blog 1, the pursuer altered its articles of association by

changing the designation of the nominated asset-locked body to a different entity,

unconnected with HTL or HTCTS. In blog 2, the defender incorrectly repeated the assertion

that HTCTS was the pursuer’s designated body for asset-lock purposes.

[15] Mr O’Donoghue gave evidence on behalf of the pursuer. His evidence-in-chief took

the form of a witness statement which he adopted as part of his evidence. He was then

cross-examined by senior counsel for the defender. Thereafter, he was given the

opportunity (in effect, re-examination), to state his observations on the points raised in

cross- examination and he did so. The evidence of Mr O’Donoghue covered his personal

details, his involvement with wildcat conservation, WHCIC and the pursuer and their

relations with HTL and HTCTS. He referred to the terms of the blogs, the addendum and

update, comments posted by others, tweets and the Facebook post by the defender and

stated why these were false and defamatory. He spoke about the lack of any attempt by the

defender to contact the pursuer prior to publishing the blogs and other material, and the

impact of the defender’s statements upon the pursuer and on him personally. He explained

why the pursuer asserted that the statements were made maliciously. He also dealt with the

losses alleged to have been suffered by the pursuer. No other witness was called on behalf

[16] Two witnesses were called for the defender. The first was Mr Servant from ACF. He

spoke to the reasons why ACF had declined to deal with the pursuer in relation to the

potential purchase of the forestry site at Arkaig. The defender then gave evidence, including

about the documents and information that he had considered and the research he had

carried out prior to making the blogs and other comments. In cross-examination he denied

acting maliciously and explained why the points that he had made were not defamatory, or

were substantially true or fair comment and had been stated in the public interest.

[17] When I come to deal with each defamatory allegation, I shall summarise in broad

terms the evidence relied upon and the submissions in respect of that allegation before

giving my decision on it. It may however assist if I set out, very briefly, a summary of the

[18] The pursuer’s position was that the defamatory statements mainly focused on the

assertion that the pursuer operated through a tax haven. The pursuer was said to be

portrayed as an operation carrying out scams and acting illegally. Numerous statements

had been made on multiple platforms over a sustained period. The reasonable reader would

“the pursuer was a tax dodging scam, designed to con the public out of money and

then funnelling money donated to wildcats to the Channel Islands, to line the

The defender had admitted publishing factually incorrect information. He had been reckless

and irresponsible and driven by malice. He had a clear disdain both for HTL and tax havens.

He had stated that HTL and the pursuer are the same entity. The damage caused by the

defender’s publications had been disastrous and had destroyed a promising venture that

was providing, and would have continued to provide, valuable funds for wildcat

conservation. The vast majority of the statements published by the defender were

statements of fact and so the defence of fair comment did not apply. If there were any

comments, they did not state the facts that were founded upon, were not in the public

interest, and were in any event driven by malice. Lack of responsibility on the part of the

defender and the malicious nature of his statements defeated his arguments about qualified

privilege. The defences should be rejected. Reference was made to Allen v Times Newspapers

[2019] EWHC 1235 (QB); Jeynes v News Magazines Limited [2008] EWCA Civ 130; Cruddas v

Calvert [2013] EWHC 1427 (QB); Massie v McCaig 2013 SC 343; Horrocks v Lowe

[1975] AC 135; Cooper, Defamation and Verbal Injury (2nd ed.); Joseph v Spiller [2011] 1 AC 852; Tse

Wai Chun v Cheng [2001] EMLR 31; Doyle v Smith [2018] EWHC 2935 (QB); Economou v de

Freitas [2016] EWHC 1853 (QB); Reynolds v Times Newspapers Ltd; and Loutchansky v The

[19] On behalf of the defender, it was submitted that the pursuer had stuck doggedly to a

position that was simply not borne out by the evidence. The meanings asserted by the

pursuer were not justified by the words used. In any event, most of the statements were

covered by the defence of fair comment. To the extent that factual assertions were made,

these were substantially true. There was no allegation anywhere that the pursuer had paid

HTL anything. As the pleaded meanings were largely not conveyed by the words used, that

was an end to the matter. If the court was prepared to ask itself what is the true sting of the

blogs, the answer was that the reasonable reader would have derived from them the simple

impression the pursuer had hooked up with and adopted the business model of HTL, and

that the defender was criticising the business model as dubious and controversial. This was

all covered by the defence of fair comment. However, this true sting was not pled by the

pursuer. In so far as there were any factual inaccuracies, these would not destroy defence of

fair comment. The Facebook post complained of, when read along with blog 2, was not

defamatory. The tweets complained of were not defamatory and in any event the various

defences referred to also applied. In relation to the comments of others posted on the

defender’s blog, in terms of the Electronic Commerce (EC Directive) Regulations 2002,

regulation 19, the defender was not liable. The defence of Reynolds privilege only required

to be resorted to if the pursuer’s pleaded meanings were both valid and not addressed by

the defences of veritas or fair comment. The defender had made the statements in the public

interest. His journalism was responsible. It satisfied the considerations listed in the Reynolds

case. The defender had explained in his evidence why he did not seek any comment in

advance of publication and respect should be given to his editorial judgement in that regard.

The inclusion of any inaccurate facts was of limited importance and should not destroy the

privilege. There were significant doubts as to whether the pursuer’s allegation of malice had

any relevance to these proceedings. In addition to there being no real role for malice, the

suggestion of malice was not made out. Turning to the question of damages, the pursuer

required to show either actual financial loss or harm to trading reputation. Neither of these

had been established. Much of the documentary evidence had not been spoken to by any

witness. No satisfactory evidence of loss had been advanced. The pursuer had agreed at a

previous hearing in the case that evidence would be needed from a forensic accountant to

establish loss. The absence of such evidence was telling. This action was highly regrettable

and had involved considerable expense. It was an attempt to silence a commentator who

was exercising a legitimate entitlement to make comment and to raise concerns on matters

which were admittedly in the public interest. His freedom to criticise and to ask questions

should prevail. Reference was made to Russell v Stubbs Ltd 1913 SC (HL) 14; James v Baird

1916 SC (HL) 158; Macleod v Newsquest (Sunday Herald) Ltd 2007 SCLR 555; Koutsogiannis v

The Random House Group Limited [2019] EWHC 48 (QB); Chase v News Group Newspapers Ltd

[2003] EMLR 11; Stocker v Stocker [2019] 2 WLR 1033; Curran v Scottish Daily Record and

Sunday Mail Ltd 2010 SLT 377; Massie v McCaig; Defamation Act 1952, section 6; Joseph v

Spiller [2011] 1 AC 852; Tse Wai Chun v Cheng; Adams v Guardian Newspapers Ltd 2003 SC 425;

Reynolds v Times Newspapers Ltd; Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359;

Flood v Times Newspapers Ltd [2012] 2 AC 273; GKR Karate (UK) Limited v Yorkshire Post

Newspapers Limited and Others (No. 2) [2000] EMLR 410; Thomson v Ross, unreported, 18 July

2000; Lewis v Daily Telegraph [1964] AC 234; Waverley Housing v BBC, unreported, 10 March

1993; Electronic Commerce (EC Directive) Regulations 2002, regulation 19; and Gateway

[20] I begin by setting out the relevant legal principles on the following key matters: the

meaning of the statements complained of, the defences of fair comment and veritas and the

responsibility of a website proprietor for comments made by others. For convenience, I will

deal with what in this case are more general issues of malice and Reynolds privilege after

discussing the individual defamatory imputations, and then turn to the issue of loss.

[21] Words are defamatory when they cause harm to reputation. Among the classic

definitions of defamation is whether the imputation would tend to “lower the [pursuer] in

the estimation of right-thinking members of society generally”: Sim v Stretch [1936] 2 All ER

1237 (at 1240). This approach is applied in cases in Scotland: see eg Massie v McCaig; Kinley

v Devine 2014 CSOH 67. It is for the pursuer to aver the meaning which he alleges that the

words complained of bear and it is that alleged meaning which the court requires to

consider: Russell v Stubbs Ltd; James v Baird. The approach taken to identifying the meaning

to be ascribed to the words is an objective one, involving a consideration of what the

reasonable man would take from a reading of the material complained of: Duncan v

Associated Scottish Newspapers Ltd 1929 SC 14, 1929 SLT 454 (per Lord Anderson at 20). The

ordinary meaning of words includes what the reasonable reader would read into them. It is

“necessary to confine innuendoes upon, and inferences from, such words within an area

which admits of their being made without strain and as an expression of the reasonable,

natural, or necessary meaning of the words employed”: Russell v Stubbs Ltd (per Lord Shaw

at 402-3). The ordinary and natural meaning of words may be either the literal meaning or it

may be an implied or inferred or an indirect meaning; any meaning that does not require the

support of extrinsic facts passing beyond general knowledge but is a meaning which is

capable of being detected in the language used can be a part of the ordinary and natural

meaning of words: Lewis v Daily Telegraph (per Lord Devlin at 279).

[22] The court should focus on how the ordinary reasonable reader would construe the

words, being particularly conscious of the context in which the statement was made:

Stocker v Stocker at [39]-[40]. The individual elements of the proper approach have been

narrated in several cases in England: see e.g. Allen v Times Newspapers; Jeynes v News

Magazines Limited. These include that the governing principle is one of reasonableness and

that the ordinary hypothetical reader is taken to be representative of those who would read

the publication in question. In Scotland, there is a helpful compilation of dicta in this regard

in Lord MacPhail’s decision in Macleod v Newsquest (Sunday Herald) Ltd at [13]-[14]. The

principles in relation to meaning were more recently summarised by Nicklin J in

Koutsogiannis v The Random House Group Limited (cross-references omitted):

“11. The Court’s task is to determine the single natural and ordinary meaning of the

words complained of, which is the meaning that the hypothetical reasonable reader

would understand the words bear. It is well recognised that there is an artificiality in

this process because individual readers may understand words in different ways …

12. The following key principles can be distilled from the authorities …

(iii) The hypothetical reasonable reader is not naive but he is not

certain amount of loose thinking but he must be treated as being a

available is not reasonable: s/he is avid for scandal. But always to

conclusions on meaning should not fall into the trap of conducting

too detailed an analysis of the various passages relied on by the

(vi) Any meaning that emerges as the produce of some strained, or

forced, or utterly unreasonable interpretation should be rejected.

(vii) It follows that it is not enough to say that by some person or

(viii) The publication must be read as a whole, and any ‘bane and

antidote’ taken together. Sometimes, the context will clothe the

classic “rogues’ gallery” case). In other cases, the context will

the words would bear if they were read in isolation (eg, bane and

(ix) In order to determine the natural and ordinary meaning of the

statement of which the claimant complains, it is necessary to take

(xi) The hypothetical reader is taken to be representative of those

(xii) Judges should have regard to the impression the article has

(xiii) In determining the single meaning, the court is free to choose

[23] As noted above, context is extremely important, and that has particular relevance in

relation to words used on social media. It has been said that “the advent of the 21st century

has brought with it a new class of reader: the social media user”: Stocker v Stocker (at [41]).

The court should keep in mind the way in which such postings and tweets are made and

read. It would be wrong to engage in elaborate analysis of a statement made on social

media, or to parse it for its theoretically or logically deducible meaning: rather, the search for

the single meaning should reflect the fact that social media is a casual medium that is in the

nature of conversation rather than carefully chosen expression and is pre-eminently a

medium in which the reader reads and then moves on: Stocker v Stocker (at [41]-[43]).

Lord Kerr also referred with approval (at [44]) to the comments of Nicklin J in Monir v Wood

[2018] EWHC 3525 (QB) (at [90] and [92]) to the effect that people scroll through Facebook

posts and Twitter messages fairly quickly and they do not pause and reflect or ponder on

what meaning the statement might possibly bear; their reaction to the publication is

impressionistic and fleeting; the essential message that is being conveyed is likely to be

absorbed quickly by the reader. In this case, the ordinary hypothetical reader must be taken

to be a reasonable representative of the readers of the blogs, or in the case of the tweets, of

the users of Twitter who follow the defender, and for the Facebook post, of those who read

those posts (see eg McAlpine v Bercow [2013] EWHC 1342 (QB) at [58]).

[24] There has also been some discussion in the English case law of the test for whether

two publications are to be treated as one for the purposes of defamation: Dee v Telegraph

Media Group Ltd [2010] EWHC 924 (QB), [2010] EMLR 20 at [29]. In considering how posts or

tweets published on different occasions might form part of the context in which a particular

post or tweet is read and understood by the ordinary reasonable reader, I have had regard to

the following comments by Warby J in Monroe v Hopkins [2017] EWHC 433 (QB); [2017] 4

“[39] I would include as context parts of a wider Twitter conversation in which the

offending tweet appeared, and which the representative hypothetical ordinary

reader is likely to have read. This would clearly include an earlier tweet or reply

which was available to view on the same page as the offending material. It could

include earlier material, if sufficiently closely connected. But it is not necessarily the

case that it would include tweets from days beforehand. The nature of the medium is

such that these disappear from view quite swiftly, for regular users. It may also be

necessary, in some cases, to take account of the fact that the way Twitter works

means that a given tweet can appear in differing contexts to different groups, or even

[25] On the question of whether material accessible by means of a hyperlink should be

treated as relevant context, in Poulter v Times Newspapers Ltd [2018] EWHC 3900 (QB)

Nicklin J referred to an earlier judgment of his (Falter v Altzmon [2018] EWHC 1728 (QB)) in

“[12] It is perhaps unrealistic to proceed on the basis that every reader will follow

all the hyperlinks, but everything depends upon its context. For example, if in a

single tweet there is a single statement that says, ‘X is a liar’ and then a hyperlink is

given, it is almost an irresistible inference to conclude that the ordinary reasonable

reader would have to follow the hyperlink in order to make sense of what was being

said. At the other end of the spectrum, a very long article could contain a very large

number of hyperlinks. Only the most tenacious or diligent reader could be expected

to follow every single one of those hyperlinks. Such a reader could hardly be

described as the ordinary reasonable reader. How many links any individual reader

would follow would depend on an individual’s interest in or knowledge of the

subject matter or perhaps other particular reasons for investigating each of the

[13] It therefore does not seem to me to be possible to put forward a hard and fast

rule that hyperlinks imbedded in an article that is complained of should be treated as

[16] I suppose, ultimately, if it is a matter of dispute, the court is going to have to

take a view as to what hypothetical reasonable reader is likely to do when presented

by an online publication and the extent to which s/he would follow hyperlinks

“[24] … Whether readers follow links provided like this is influenced by a number

of factors, including: (1) their familiarity with the story or subject matter and whether

they consider they already know that they are offered by way of further reading; (2)

their level of interest in the particular article and whether that drives them to wish to

learn more; (3) particular directions given to read other material in the article; (4) if

the reader considers that he or she cannot understand what is being said without

clicking through to the hyperlink. It might be reasonable to attribute items (3) and (4)

to the hypothetical ordinary, reasonable reader, but (1) and (2) will vary reader by

[26] In light of the points made in the case law, where the pursuer submits that more than

one publication is to be taken into account to found the defamatory imputation, I conclude

that the test to be applied is whether, having regard to all of the circumstances, it is to be

inferred that hypothetical ordinary reasonable reader of the material complained of will also

have read, or have in mind, the other material which is relied upon as context. For that to be

possible, there must be a sufficient nexus, connection or association between the

publications, which could include a reference or hyperlink or the publications being part of

for example, a Twitter conversation, or a series or sequence of material.

[27] While it may be possible to classify different levels of defamatory meaning, there is

in law no settled categorisation. In Koutsogiannis, Nicklin J (at [13]) made these observations:

“… in Chase -v- News Group Newspapers Ltd [2003] EMLR 11 at [45] Brooke LJ

identified three types of defamatory allegation: broadly, (1) the claimant is guilty of

the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3)

grounds to investigate whether the claimant has committed the act. In the lexicon of

defamation, these have come to be known as the Chase levels. Reflecting the almost

infinite capacity for subtle differences in meaning, they are not a straitjacket forcing

the court to select one of these prescribed levels of meaning, but they are a helpful

[28] A similar approach to that adopted for identifying the meaning of the allegedly

defamatory statements is to be followed in assessing whether the meaning conveyed by the

words complained of is an assertion of fact, or whether it is a comment or expression of

“…when determining whether the words complained of contain allegations of fact

(i) The statement must be recognisable as comment, as distinct from an

(ii) Opinion is something which is or can reasonably be inferred to be a

deduction, inference, conclusion, criticism, remark, observation, etc.

(iii) The ultimate question is how the word would strike the ordinary

reasonable reader. The subject matter and context of the words may be an

[29] The same sort of approach is adopted in Scots law: see Curran v Scottish Daily Record

and Sunday Mail Ltd (per Lady Wise at [37]). The words must be recognisable as comment

rather than an assertion of fact. If it is comment then “The expression of an opinion as to a

state of facts truly set forth is not actionable, even when that opinion is couched in

vituperative or contumelious language”: Massie v McCaig at [30]. The defence of fair

comment is thus made out under Scots law if the meaning complained of is (a) recognisable

as a comment, (b) upon facts which are truly stated, (c) relating to a matter of public interest:

Massie, supra. The rigours of requirement (b) have been relaxed by section 6 of the

“…a defence of fair comment shall not fail by reason only that the truth of every

allegation of fact is not proved if the expression of opinion is fair comment having

regard to such of the facts alleged or referred to in the words complained of as are

Under Scots law, “malice is not part of the equation”: if something is fair comment derived

from true fact, whether it is maliciously made has no relevance: Massie at [32].

[30] It has also been held that public interest is not to be confined within narrow limits:

see Joseph v Spiller (at [3]), citing with approval Tse Wai Chun v Cheng. I bear in mind the

observations in Massie v McCaig as to the approach in Scotland. Malice in the sense of

ill-will or spite cannot rebut the defence of fair comment, but if the maker of the statement

has no belief in the opinion expressed that will mean that it is not a genuine opinion for the

[31] For the defence of veritas (truth), what is required is that the defamatory meaning

conveyed by the defender, insofar as it amounts to an assertion of fact, is substantially true

[32] In the present case, the defender did not seek to contend that he had no

responsibility for comments on his website made by others, but relied upon the following

defence. In terms of the Electronic Commerce (EC Directive) Regulations 2002,

“does not have actual knowledge of unlawful activity or information and, where a

claim for damages is made, is not aware of facts or circumstances from which it

would have been apparent to the service provider that the activity or information

In Kaschke v Gray [2010] EWHC 690 (QB) it was held that this provision applied to blogs

[33] The pursuer sets out in its pleadings the meanings it argues are to be taken from the

relevant publications. The pursuer adopts the standard language used in defamation

pleadings in Scotland that the words in the relevant publications “falsely and calumniously

represent, and are understood by members of the public to represent directly and by

innuendo” the alleged defamatory meaning. I therefore take into account that the pursuer

relies upon innuendo as well as direct representations. It is however clear that innuendo, in

the sense of the words themselves not being defamatory but becoming defamatory because

of special knowledge on the part of a reader, is not asserted, either in the pleadings or in

submissions. Separately, in the written and oral submissions for the pursuer, a different

structure was adopted from that in the pleadings and the specific defamatory meanings

averred were not each individually addressed. I have taken from the written and oral

submissions for the pursuer the points that relate to the specific defamatory meanings

alleged in the pleadings. In those written and oral submissions, individual statements from

the blogs, posts or tweets were on occasion identified and founded upon and I record these

[34] As is obvious, where defamatory imputations are alleged to have been made in

material placed on the internet or on Twitter or Facebook, the position differs from that of,

say, an article in a newspaper. For example, a tweet is not itself a publication to the world at

large. It is also of relevance to note that the material published commonly remains on the

website and, at least for a period of time, on the Twitter account or on Facebook and that it

can be accessed, including very easily by a hyperlink if one is made. Where multiple

publications of this sort are relied upon (as is the case here) it becomes important for the

pursuer to make clear the particular publications founded upon and how and when other

material should be taken to form part of the context in which the publication is to be

understood. Where, for example, it is to be alleged that an earlier tweet is to form part of the

context of a later tweet, or Facebook post, issues will arise as to how and when that can be

established or inferred. As noted above, hyperlinks and references will no doubt be relevant

factors, as will be the timing of the individual publications (for example, whether they are all

part of the same Twitter conversation). However, if it is to be suggested that the reader of a

tweet must have had in mind the content of a blog made say one month earlier, that

inference may not be easy to draw. Evidence about the number of followers on Twitter, the

number of friends on Facebook and of people who would or did read the blogs (but not of

course about the natural and ordinary meaning of the words), might assist in supporting

such an inference. Very little evidence of that kind was led in this case. It is correct that the

defender plainly has an interest in issues concerning land: his website in entitled “Land

Matters…” and the double meaning of “matters” indicates its clear importance to him. The

tweets referred to in the present case relate to land matters and no doubt there will be other

tweets by the defender about other land issues. The evidence was that the defender has

some 8,000 followers on Twitter. Thus, it may well be the case that a number of people,

interested in such issues, read both the blogs and the tweets by the defender. However, in

order to allow an inference to be drawn that a reader of a tweet must have had in mind the

contents of, for example, a blog made some time earlier to which there is no hyperlink or

reference in the tweet, there requires to be a basis for that inference.

[35] As noted, the pursuer avers that read in isolation and also in conjunction with

comments generated by them, blog 1, the addendum, and blog 2 made eight defamatory

imputations. Blog 2 contained a hyperlink to blog 1. I now deal with each of the pleaded

(a) The pursuer is acting in an immoral and illegal way by offering souvenir plots for sale.

[36] In support of this meaning, in its written submissions, the pursuer identifies one

particular “defamatory statement”. On 29 September 2015, a member of the public posted a

query on the defender’s blog asking why the pursuer’s business methods are “not illegal

under the trades description/consumer law?” In response, on the same day, the defender

commented “It may well be illegal – I do recall some deliberations to this effect in the past”.

The pursuer contended that any reasonable reader seeing that statement from the defender

would be led to believe that the pursuer was acting illegally and involved in criminal

activities. The comment was therefore defamatory. The pursuer submitted that the

allegation was untrue and was not backed up by any evidence or facts. Selling souvenir

plots was a well-established business practice adopted by many companies since at least

1971. Also, in blog 2, the defender had said that selling souvenir plots may well be “a bit of

fun” and it was not therefore feasible that the defender honestly believed that selling

[37] The defender argued that there was no assertion of the pursuer acting in an immoral

and illegal way. The closest the pursuer could come to anything of that nature was a

reference to WHCIC (not the pursuer) having adopted HTL’s dubious methods of selling

souvenir plots of land and claiming that the purchaser is the owner. There was no assertion

of guilt of criminality or immorality. In any event this was a clear instance of comment and

it was covered by the defence of fair comment. The defender’s response to the query posted

on his blog, founded upon by the pursuer, was plainly an expression of opinion rather than

stating a fact. The opinion was based on the view that it is false advertising to assert that

one is offering for sale a plot of land when title to the land will not pass on that sale and the

seller is not the owner of the plot. That is obviously something which might be viewed by a

commentator as relating to the law on trades description or consumer law. Accordingly the

defence of fair comment was established in relation to the particular statement relied upon.

In any event, if there was taken to be a factual assertion of illegality or immorality, that was

substantially true. It was neither moral nor legal to offer for sale something that one does

not own, or to offer land for sale without explaining the limitations of the effect of that sale,

or to represent falsely that the purchase will entitle the buyer to style himself or herself as a

[38] Applying the relevant principles and viewing the words in the context of the

relevant publications as a whole, the pursuer is correct as to the meaning which the words

would have conveyed to the ordinary reasonable reader, subject to one qualification. The

qualification is the insertion of the word “possibly” before “illegal”, reflecting the point that

the response to the question that the pursuer quotes, which concerned “trades

description/consumer law”, was that the sale of souvenir plots “may well be illegal”. To

assert that the pursuer is doing something which may well be illegal amounts to a

defamatory imputation. That meaning does not directly assert criminality or immorality,

but it does suggest that there may be grounds to at least investigate such a possibility (Chase

level three). In addition, the clear theme of the blogs was that the sale of souvenir plots is a

practice known to be dubious and in that sense is immoral. I accordingly conclude that the

relevant publications had that defamatory meaning, which is sufficiently close to the

[39] Turning to the defences, the meaning (as well as the specific statement made and

complained of) is not an assertion of fact, that being plain from the language used in the

articulation of the meaning and in the statement itself. A view that something is immoral is,

at least in the present context, a matter of opinion. The factual basis for that meaning and

for the comment that the acts “may well be illegal” is the discussion in the blog about the

controversy over whether the sale of a souvenir plot results in the purchaser being, in law,

the owner of the plot. That is plainly a matter of public interest. I therefore accept the

defender’s submission that this is an expression of comment or opinion based upon facts

which are true and made on a matter of public interest. I do not consider that the comments

in blog 2 relied upon by the pursuer justify the pursuer’s position that the defender had no

honest belief that selling souvenir plots may well be illegal: whether or not it was also “a bit

of fun” does not contradict that opinion. It is clear that the defender reasonably believed

that publishing the statement complained of (and indeed all of the other statements) was in

[40] If for any reason the meaning stated is taken as an assertion of fact, it was in any

event substantially true. At the time of blog 1 the pursuer did not own the land and hence

could not purport to sell the plots. There was also evidence led that the “dispositions” given

to particular purchasers referred to land to which the pursuer did not have title. Further, it

is not correct that the purchase of a plot entitled the buyer to style himself or herself as a

[41] In its written submissions the pursuer alleges that there is a further statement in

“Wildcat Haven has adopted Highland Titles dubious methods of selling small

souvenir plots of land and claiming that the purchaser is the owner.”

I conclude that the meaning of this statement alleged by the pursuer, again read in the

context of the relevant publications, is the natural and ordinary one that the pursuer acted in

the same dubious manner as a company (HTL) in relation to the sale of souvenir plots and

claiming that the purchaser is the owner. That meaning does not directly assert criminality

or immorality, but once again it does suggest that there may be grounds to suspect or at

least investigate such a possibility (Chase levels two or three). This is therefore also a

defamatory meaning. I do not consider that the ordinary reasonable reader would have

drawn a distinction between the two Wildcat Haven entities; rather, that reader would

conclude that the pursuer was, at least in part, the subject of the allegation. In any event, in

blog 1 the defender had effectively defined “Wildcat Haven” as involving both the pursuer

[42] However, again the defence of fair comment is made out. The meaning complained

of can reasonably be taken to be an inference, conclusion, criticism, remark or observation.

Whether conduct is “dubious” is not a matter of fact but an expression of a view. Whether

the pursuer was claiming that the purchaser is the owner is also an inference or conclusion

drawn from the points made in the pursuer’s website: the blog refers to, and contains a

hyperlink to, “extensive faq” on that matter. The basis of the statement was the facts

narrated in the blogs (concerning the controversy about souvenir plots being ostensibly

sold) which are plainly true and the issue is again clearly a matter of public interest (as

indeed was admitted by the pursuer). Thus, the defence of fair comment applies also to this

defamatory imputation. Again, if the meaning does not fall within the definition of fair

(b) The pursuer is tricking members of the public and is not using the proceeds of sale of

[43] In its submissions, the pursuer made no specific reference to this allegedly

defamatory meaning. The pursuer did, however, refer to there being a defamatory

statement that: "The land is 75 ha in extent and if all sold in 10 ft² plots would generate

£40.35 million sales revenue paid to a company in Alderney in the Channel Islands”. The

pursuer argued that a reasonable reader would therefore assume that the proceeds of the

purchase of a wildcat souvenir plot would be “funnelled” offshore.

[44] The context in which that particular statement is made in blog 1 is that the land from

which the souvenir plots were being sold was owned by HTL. The blog referred to HTL as

naming the area of land as “Bumblebee Haven” from which a person could purchase plots

ranging from 10ft² to 100ft² and call oneself Lord or Lady Glencoe. The blog contains a link

to the title and plan of the area of land. Thereafter the statement founded upon by the

pursuer is made. There is no suggestion in the blog that the pursuer was selling plots of

land of 10ft². The blog refers to the registered address of WHCIC and the pursuer as each

being in Cornwall. It is clear that the ordinary reasonable reader would take the comment

founded upon to be a reference to sales by HTL, that being the company which was selling

10 ft² plots and having its base in the so called “tax-haven” of Alderney in the Channel

[45] In blog 2, a similar statement is made. However, the context differed. The second

blog refers to the requirement for an asset-lock that restricts the disposal of assets of the CIC.

It states that in the case of the pursuer HTCTS is “the designated body to become the

potential recipient of the assets”. It then sets out the questions posed by the defender to the

director of the pursuer. It goes on to narrate that following her claim that part of the land

had been gifted “to us” the defender had “checked the title” and discovered that HTL

“remained the owner and had gifted no land to Wildcat Haven”. It adds that on 9 December

2015, HTL had made an application to the registers of Scotland to transfer part of the land to

"It remains unclear what financial arrangements have been entered into and why

[DW] is a Director and why Highland Titles Charitable Trust for Scotland is the

designated beneficiary of the assets of Wildcat Haven Enterprises CIC”.

[46] I do not consider that these statements, read in the context of the relevant

publications founded upon, mean that the proceeds of sale of souvenir plots by the pursuer

were not being used to fund conservation of wildcats and hence that the pursuer was

tricking members of the public. Specific reference is made to Highland Titles making an

application to transfer part of the land to the pursuer, so the reader was made directly aware

that some of the land might be transferred. It is then said that financial arrangements

remained unclear, indicating that there is no direct assertion of what financial arrangements

existed. Incorrectly, blog 2 states that HTCTS is the designated beneficiary of the assets of

the pursuer. Read along with blog 1, the expression “designated beneficiary” means that the

assets are transferred in the event of winding up. As the defender accepted, as at the date of

blog 2, HTCTS was no longer the asset-lock body or designated beneficiary. However, read

along with blog 1, the statement is simply repeating the position as to what sums of money

would be generated to HTL in the event that the land owned by HTL (not WHCIC or the

pursuer) was sold. That is the meaning. I therefore reject the pursuer's contention that this

[47] While not directly asserted, it appears that the pursuer seeks to rely for this purpose

on certain passages in the blogs. These passages were expressly referred to in the pursuer’s

submissions on allegation (f) which I discuss below. No other specific statement within the

relevant publications founded upon was identified by the pursuer in support of this alleged

defamatory imputation. Properly understood, applying the test of the ordinary reasonable

reader, no such allegation was being made by the defender. The point being made was that

HTL owned the land and was selling plots for the conservation of bumblebees. The

defender simply did not state or imply that any actual souvenir plot was being sold by the

pursuer when it had already been sold by HTL. Accordingly the meaning alleged by the

pursuer is simply not made out, whether directly or by innuendo. The true meaning is

simply that the pursuer was selling souvenir plots from the same area of land as Bumblebee

(d) The pursuer is paying and will continue to pay large sums of money comprising the

revenue from the sale of souvenir plots to a company in Alderney in the Channel Islands

where the destination of those sums is beyond public scrutiny and where that money may

well be used for purposes unconnected with the conservation of wildcats.

[48] I have already set out the pursuer’s submissions on this point in the context of

discussing the second defamatory imputation. For the reasons there given, I reject the

pursuer's contentions as to the existence of this defamatory meaning, again whether directly

or by innuendo. I have also set out the true meaning. The relevant publications do not

support the alleged imputation that the pursuer is and will continue to make payments to a

company in Alderney. The reference to the asset-lock was made in the context of potential

(e) (under reference to inter alia the opening passage of blog 2 linking into blog 1 and the

use of the HTL logo and that links to other blogs which are critical of HTL and to the

comments in the form of tweets generated by blogs 1 and 2 as hereinafter condescended

upon) the pursuer is controlled by HTL which is a disreputable company engaged in

[49] As is evident from the various publications founded upon, the pursuer here relies on

a fairly complex jigsaw or mosaic of different online material. I have discussed earlier (at

para [34] above) the difficulties with the approach of aggregating a number of individual

online publications. No proper basis was given from which an inference can be drawn that

these various publications would have been read together, either as a single publication or

as part of the context of each other. For that reason, I reject that these various publications

can be aggregated in order to found the meaning alleged. In its submissions, the pursuer

argued that in the blogs the defender stated that HTL and the pursuer are the same entity.

The pursuer also submitted that there are repeated assertions in blogs 1 and 2 that the

pursuer is controlled by HTL. The pursuer referred to blog 2 and the statement therein that

in early June 2015 Highland Titles bankers and corporate service providers had given notice

of terminating their services and that the pursuer was incorporated on 30 June 2015. The

pursuer argued that the reasonable reader would believe that due to losing their banking

provisions, Highland Titles would cease trading and had created a new entity which they

controlled, being the pursuer, and this would allow them to continue funnelling money

offshore. I conclude that the ordinary reasonable reader would take from the blogs that

there was a close link between HTL and the pursuer, including that HTL appeared to have

established a very close relationship with Wildcat Haven which operates via the pursuer,

that DW was a director of both, that HTL owned land in respect of which the pursuer was

apparently selling plots, that HTL had applied to transfer part of the land to the pursuer and

that HTCTS is the asset-lock of the pursuer. However, this link between HTL and the

pursuer as explained in the blogs did not go as far as meaning, or allowing the inference to

be drawn, that HTL actually controlled the pursuer. While I accept that the structure of this

part of blog 1, and its reference to when the pursuer was incorporated, may carry some

implications, the reference to the bankers and service providers terminating their services

did not imply or infer that HTL would cease trading and, more importantly, did not allow

the inference that the pursuer had been created by HTL and was controlled by it. On that

basis, I reject the defamatory imputation founded upon by the pursuer. I also conclude that

the ordinary reasonable reader would not have taken the material to mean that the defender

was alleging that HTL was “a disreputable company engaged in directing money offshore

and in tax evasion”. There were plainly statements that HTL engaged in dubious or

controversial business methods, in particular in the selling of souvenir plots when the buyer

does not acquire legal title to the plot, and that the proceeds go to an offshore base, which is

a “tax haven”, but that does not go the distance of alleging that HTL is disreputable or

engaged in tax evasion. I conclude that the reader would not take from the relevant

publications, whether directly or by innuendo, that HTL had the characteristics alleged. To

the extent that the pursuer suggests that it was untrue that HTL’s bankers and service

providers had withdrawn their services, the evidence was to the contrary.

(f) The pursuer is paying money raised from the sale of souvenir plots to HTL.

[50] In its written submissions, the pursuer founded upon the statement in blog 1 to the

effect that the land that the “supporters are being invited to acquire is not only already

owned by a company in Alderney and being sold plot by plot for bumblebees, this ‘first

wildcat haven’ is 60 miles to the north of Ardnamurchan and Morvern and well outside the

area being promoted for wildlife conservation”. The pursuer argued that the defender was

stating that land not owned by the pursuer, from which the plots were being sold, was also

not located where the Wildcat Haven project operates or planned to operate, the clear

suggestion being that this was a scam and that the money raised would be going to an

offshore tax haven. I reject that alleged meaning. The natural and ordinary meaning of the

words is plain and, at the risk of repetition, is simply that the land was at the time of the

blog owned by a company in Alderney, was being sold plot by plot for bumblebees and was

located well outside the area that the pursuer currently stated it was promoting for wildlife

conservation. Those facts are substantially true. At the time of blog 1 the land was owned

by HTL. The disposition in favour of the pursuer occurred on 24 November 2015. HTL was

at the time of blog 1 selling plots to support bumblebees. The area of land was outwith that

which the pursuer was publicising as being used for the wildcat project.

[51] The pursuer makes similar contentions in the second and fourth defamatory

allegations referred to above. For the reasons given there, I do not accept that the defender’s

statements would be taken to mean, directly or by innuendo, that the pursuer was paying

the money raised from the sale of its souvenir plots to HTL. The real meaning is that the

pursuer was seeking to raise money from the sale of souvenir plots and had adopted a

similar approach to that taken by HTL, with whom it had certain links. It is true that in

response to the comments from the director of the pursuer the defender asked the question

whether HTL received any payment or commission from the pursuer. I accept that in some

circumstances a question can, in context, itself convey a defamatory meaning, for example

viewed by the ordinary reasonable reader as being aimed at gathering evidence for an

allegation already plainly made. However, when read in the context of the whole of the

relevant publications, this was truly just a genuine question in the terms stated. The

ordinary reasonable reader would not have considered this to be an actual allegation in the

guise of a question. Accordingly, I conclude that this alleged defamatory meaning is not

(g) DW (who is a director of the pursuer) is also a director of HTL and a trustee of HTCTS

and that, accordingly, the pursuer has close ties with HTL which are alleged to be involved

in dubious and illegal sales of souvenir plots and who are said to have opaque financial

[52] This particular allegation was not specifically addressed in the written or oral

submissions of the pursuer. There was, however, reference in those submissions to the

pursuer being controlled by HTL, and HTCTS being the asset-lock, and related matters. The

allegation begins with a specific factual point (concerning DW) which is said to give rise to

close ties with HTL. It is not legitimate to identify only one statement from the blogs which

relates to close ties, when there are others that are true; that divorces the specific point from

the rest of the context. Also, no actual allegation of illegality is identified by the pursuer,

although I accept that the defender had of course said in a comment following blog 1 that

the acts “may well be illegal” and I accept that this comment can be taken to be part of the

relevant publications. The meaning which the ordinary reasonable reader would take from

the relevant publications is that the pursuer has close ties with HTL which is alleged to be

involved in dubious and possibly illegal sales of souvenir plots and said to have opaque

financial affairs. This is a defamatory meaning and I regard it as being sufficiently close to

the meaning averred by the pursuer as to form part of the pursuer’s case. The question then

arises as to whether this meaning is a comment or an assertion of fact. While there are

plainly factual elements in the imputation, viewed by the ordinary reasonable reader it is

comment, as the key point is the inference or conclusion of there being close ties. Taking the

words “may well be illegal” to form part of the material from which the meaning is drawn,

along with the references to “dubious” and to “opaque financial affairs”, these expressions

also point to this being a comment. As to the mention of “close ties”, while this could be

regarded as a factual statement (capable of verification) rather than a comment, viewed in

the context of the meaning I have accepted, it is a comment, an inference or conclusion from

other factual material. In any event, that part of the meaning is plainly true. The close ties

included that at least for a period of time DW was a director of the pursuer and HTL and

that HTCTS was, at least for a period of time, the asset-lock of the pursuer and in due course

there was the gift of land from HTL to the pursuer. The evidence indicated that DW was a

director of HTL until 21 August 2015, but then resumed his directorship from 21 October

2015 until 17 February 2016. He was a trustee of HTCTS until 6 July 2015. Accordingly, he

was a not a director of HTL at the time when blog 1 was published, nor was he a trustee of

HTCTS when either blog was published. However, he was a director of HTL and of the

pursuer when blog 2 was published. There is therefore some factual inaccuracy in the

material published by the defender, but there was ample other evidence of close ties existing

at the time of each blog, including HTCTS being the asset-lock at the time of the first blog

and HTL at the time of blog 1 owning the land from which souvenir plots were being sold

on behalf of the pursuer. That evidence suffices, but I note that there was also other

evidence given about ties between the entities, including that Mr O’Donoghue accepted that

there had been an ongoing relationship with HTL, with it giving funds and supplying gift

packs in relation to the souvenir plots. Thus, while there are certain factual inaccuracies, the

comment is based upon facts which are true. Those facts include the links between the

entities, the controversy as to the sale souvenir plots and the secrecy of the accounting affairs

of HTL/HTCTS. The comment was also made on matters of public interest. For those

reasons, the defamatory imputation is covered by the defence of fair comment. If that

conclusion is incorrect, then the defence of veritas would apply to the meaning which I have

identified. I therefore sustain the defender’s defence of fair comment, which failing veritas,

(h) In the event of the pursuer being wound up its assets will pass to HTCTS

[53] This meaning derives from what is plainly stated in parts of the relevant publications

and when read in context it is clearly what the reasonable reader would understand from

the material. However, the meaning is not one which is defamatory. It deals solely with the

situation of winding-up. The matter mentioned forms part of the “close ties” which existed,

albeit that by the date of blog 2 it was no longer true that HTCTS was the asset-lock. The

statement, when repeated in blog 2, was incorrect but not defamatory, whether directly or

by innuendo. There is no suggestion of the pursuer ever being at risk of being wound up, or

of the pursuer collecting money and not using it for wildcat conservation, but intending to

[54] In relation to the blogs and the material on the defender’s website, the pursuer

“The material inaccuracies at the centre of the defender’s defamatory statements are

that the proceeds of sale of souvenir plots sold by the pursuer are not being used to

fund wildlife conservation but are being paid to HTL and are being diverted into

I have already rejected the suggestion that the relevant publications have that meaning. I

therefore conclude that the pursuer’s articulation of the central sting is simply not correct.

The true sting is that the pursuer was closely associated with HTL and HTCTS, and these

were entities which carried out dubious selling of souvenir plots and were based in a tax

haven. However, this meaning did not include that the pursuer was not using the proceeds

of souvenir plots to fund conservation of wildcats, or that the pursuer was paying large

sums of money to HTL/HTCTS, or that the pursuer was paying money raised from selling

souvenir plots to HTL. The key problem for the pursuer is the lack of reference in the

relevant publications to any such payments. The potential slight confusion regarding the

sale of plots within the 75 ha site, and the total sums generated by sales which would come

to include the gifted land, is not sufficiently clear to establish payments by the pursuer to

HTL/HTCTS. Contrary to my understanding of the submissions for the defender, the

pursuer does indeed allege what I have described as the true sting, or at least something

sufficiently close to it, as a defamatory meaning: see imputation (g) above. However, for the

reasons given on that point, this meaning is not defamatory and even if it is the defences of

[55] The tweet founded upon by the pursuer and made by the defender on 29 September

2015 (the day after blog 1) contained a link to that blog and was in the following terms:

“Free advice for charities. Have nothing 2 do with souvenir plots, lords and

As noted, the evidence was that the defender had some 8,000 followers on Twitter. In my

view, the hypothetical ordinary reasonable reader is likely to have required to click through

to the hyperlink, and read the blog, in order to understand what is being said in the tweet.

The pursuer also argued that on 29 September 2015 another person tweeted “Become a laird

– help save the #wildcat”, with a link to a newspaper article promoting the pursuer’s

conservation activities. In response, the defender tweeted: “…er no. Please don’t”.

The defender also added, alongside this tweet, a link to blog 1. I am again prepared to

accept, given the timing of the tweet and the hyperlink, that the hypothetical reasonable

reader would have read both tweets and blog 1. The second tweet and the blog therefore

form part of the context. The pursuer also referred in its submissions to another tweet by

the defender, on 28 September 2015, where he used the words “Highland Titles Latest

wheeze”, with a hyperlink to blog 1. This was not the subject of averment and I cannot take

it into account as part of the context. However, even if I did it would make no difference to

[56] The pursuer contended that the first tweet on 29 September referred to above was

defamatory in its own right in respect that it falsely stated that the proceeds of sale of

souvenir plots was being funnelled through tax havens. The defender argued that this could

not be read on its own as defamatory of the pursuer, which is not named. Further, read

alongside blog 1, various defences applied. The defender also contended that it required a

strained or sinister meaning for someone reading that “ephemeral tweet” and then reading

the entirety of blog 1 to then recall the tweet and decide that the entity “funnelling £” was

[57] For the reasons I have given above, I do not consider that the reasonable reader

would take from blog 1 that the pursuer was giving or paying the proceeds of the sale of

souvenir plots to HTL or HTCTS. There is no suggestion that the pursuer was “funnelling”

money through tax havens. The material which could reasonably be read as involving

“funnelling” money through tax havens identified only HTL and HTCTS. Blog 1 also states

“Wildcat Haven is a project designed to protect the Scottish wildcat by preventing

hybridisation with feral cats and providing a network of reserves to manage as

This is clearly not suggestive of any immoral or illegal conduct but rather is a fair

description of the project’s objectives. In blog 2, reference is made to the latest efforts of

HTL to garner greater respectability by becoming involved with “a conservation project

called Wildcat Haven CIC”. Blog 1also mentions that the pursuer is registered in Cornwall,

and hence not in a tax haven. Blog 2 refers to the pursuer’s registered office being in North

Wales. The whole content of the blogs and the tweet, and the absence of any reasonable

basis for inferring from the relevant publications that the pursuer, rather than HTL/HTCTS

was “funnelling £” through tax havens, result in the defamatory meaning averred by the

pursuer as not being one which the ordinary reasonable reader would take from that

material, whether directly or by innuendo. The meaning is simply that charities should have

nothing to do with selling souvenir plots, lords and ladyships and funnelling money

[58] The Facebook post by the defender dated 25 February 2016 stated “LATEST BLOG

on Highland Titles/Wildcat Haven and being dumped by their bankers and corporate

service providers”. It contained a link to blog 2, which is titled “Highland Titles Day”. The

pursuer submitted that this was put forward as a clear statement of fact and that the

ordinary reasonable reader would be aware that bankers would typically only withdraw

their services if they had suspicions of financial impropriety. The defender submitted that

the Facebook post could not be read on its own. It was in essence a headline, with blog 2

being the article. When read along with the post, the blog made clear that it was Highland

Titles that were dumped by their bankers and corporate service providers. In any event, the

[59] The Facebook post by the defender showed the graphic of blog 2 and referred to his

“latest blog”, and as I understand it, contained a link to that blog. The hypothetical ordinary

reasonable reader would understand the post to be, in effect, a headline point, making a

promotion or advertisement of the blog, or an invitation to peruse it. In order to understand

the words in the post I am satisfied that the reader would have accessed and read blog 2.

The relevant publications for present purposes are therefore the post and the blog.

Alternatively, the blog would at least form part of the context in which the post was read.

Taking into account the contents of the blog, I reject the defender’s submission that the

reference to Wildcat Haven would not be taken by the reader to be a reference to the

pursuer. In blog 2 the defender identified Wildcat Haven as involving WHCIC and made

several references to the pursuer, which was the fundraising arm. The reasonable reader, if

he had read the blog and the Facebook post, would not interpret this as a reference only to

the company WHCIC. However, the blog states that “Highland Title’s bankers and

corporate service providers in Guernsey gave notice of the termination of their services”.

The Facebook post should be read in the way described in Stocker and similar cases. The

language used is not designed to be viewed with absolute precision, especially when it is

really simply inviting perusal of the blog. The words in the post are capable of being read as

referring to the blog as concerning “Highland Titles/Wildcat Haven” with the remainder of

the post being rather unclear, until read along with the blog. The blog itself makes specific

reference only to Highland Titles losing its bankers and corporate service providers. In my

view, that is the meaning of the post when read in the context of the blog. While the

Facebook post may introduce some ambiguity, the ordinary reasonable reader would not

take it, when read in context, to mean that the pursuer was in the same position. I

accordingly do not accept the defamatory imputation alleged by the pursuer.

[60] It was accepted that the comments posted by others on the defender’s website were,

as a matter of law, to be taken as published by him. I do not intend to set out the content of

these other comments in any detail, but they included “many might have been tempted to

contribute to this ***** scheme, purely out of desire to help a threatened species and help

Scotland’s wildlife. It is truly sickening that a loathsome enterprise is operating in this way”.

Other comments said “It’s totally appalling”, a “scam” and “It’s a pity they can’t be gaoled”.

“I completely agree with you that it is sickening to think of people using other

people’s love for a beautiful endangered animal to spiv some money. It also angers

me that our laws are so weak for crimes against life. In this particular case I just urge

you to keep reading, keep watching how the story evolves. I’m counting on all of us

[61] The pursuer argued that these comments, taken in their own right and read in

conjunction with blog 1, the addendum and the update, and blog 2 represented that (i) the

pursuer is acting in an immoral and illegal way by offering souvenir plots for sale; and (ii)

the pursuer is tricking members of the public and is not using the proceeds of sale of

souvenir plots to fund conservation of wildcats. The defender contended that there was no

suggestion that the defender himself was responsible for the actual content or making of any

of these comments, and that in unchallenged evidence he had explained that these

comments represented the honest views of certain people who had read his blogs and that it

was not for him to censor such views. The defence under regulation 19 of the Electronic

Commerce (EC Directive) Regulations 2002 was therefore made out: the defender did not

have “actual knowledge of unlawful activity or information”. The pursuer did not seek to

contend that regulation 19 did not apply in the present circumstances and in light of the

decision in Kaschke v Gray it appears to apply to a website host who is merely storing

[62] In my view, the first comment must be taken as referring to the pursuer, given its

reference to a “threatened species” and “Scotland’s wildlife”. Perhaps arguably, it could be

taken as referring to HTL, particularly in respect of bumblebees, but there was nothing in

the evidence to suggest that bumblebees were themselves a species that was threatened. The

rest of the comment could readily be taken as a reference to the sale of souvenir plots. The

comment has a defamatory meaning, that the pursuer is involved in a sickening and

loathsome enterprise. Viewing this as a comment on the defender’s website, not his own but

one for which he accepted he has legal responsibility, the elements of the defence of fair

comment are met. There was an ample basis on true facts for the making of such a comment,

on a matter of public interest, and there is no reason to conclude that the person who made

the comment, or for that matter the defender, did not hold the view expressed. It is far from

clear that the other comments (apart from the final one) were referring to the pursuer. Given

the repeated reference to HTL and HTCTS in the blogs I am unable to conclude that the

[63] More importantly however, I conclude that on the evidence the requirements for the

defence under regulation 19 of the 2002 Regulations are satisfied. No basis was suggested

for the defender having actual knowledge of unlawful activity or information or of being

aware of facts or circumstances from which it would have been apparent to him, as the

service provider, that the activity or information was unlawful. I accept the defender’s

[64] The pursuer alleges in it pleadings that a number of tweets by the defender between

16 November 2012 and 3 May 2017 (Appendix, section 8) are defamatory of the pursuer in

the manner and to the extent of points (e) and (f) above. Some of the tweets complained of

were posted relatively close to each other in time, on 25 and 29 September 2015. I conclude

that the hypothetical reasonable reader reading the second of these tweets would have in

mind the content of the first or at least would, in seeking to understand the second tweet,

have scrolled to recent tweets including the first. The same applies to the two tweets on 24

and 25 February 2016. No basis was presented and no evidence was led which would

support the view that tweets published on various other dates, including 16 November 2012,

21 February 2015, 6 April 2016 and 3 May 2017 could, individually or collectively, be taken

along with any of the other tweets to form part of the context of those tweets. Most of these

[65] The submissions made by the pursuer identified two specific tweets by the defender,

said to support the contention that the defamatory allegations were made. The first was

“Fact that Wildcat Haven has blocked my IP address suggests whole operation is being run

by Highland Titles”, tweeted on 29 September 2015. The second was in response to the

following tweet on 10 March 2016 from someone from BBC Scotland: “this Wildcat Haven

project on the @bbcscotland news site, is the one run by the Highland Titles mob?” The

response by the defender was "...@bbcscotland news it is the one where the fundraising arm

is run by Highland Titles – yes". The defender submitted that the complaints made had not

been explored in evidence and in any event that the comments made were not defamatory of

the pursuer, were directed more towards HTL and indeed were plainly true.

[66] The tweets which are founded upon were referred to in the evidence. The first of the

tweets quoted above was posted shortly after another tweet which referred to the “Latest

scam from Highland Titles”. The tweet founded upon is expressed as suggesting that the

whole operation, including the pursuer’s operation, is being run by HTL. The meaning of

these tweets is that the pursuer may be being run by a company engaged in a scam, which is

a defamatory imputation relatively close to that averred in item (e) above. This is, however,

plainly a comment or expression of opinion: it is a deduction or inference that the defender

has drawn from the fact stated (that he was blocked from the website). It was an

understandable inference on the part of the defender and it was based on the true fact of him

being blocked from the website. It was also dealing with a matter of public interest. I

therefore conclude that this is covered by the defence of fair comment.

[67] In the second of the tweets quoted above, posted on 10 March 2016, in answering

whether the Wildcat Haven project is the one run by “the Highland Titles mob”, the

defender repeats the question and answers “yes”, in respect of the fundraising arm (that is,

the pursuer). The project referred to in the tweet would have been taken by the ordinary

reasonable reader to include the operations conducted by the pursuer. The reader would

undoubtedly simply take the natural and ordinary meaning of these words and understand

them to mean that “Highland Titles” ran and hence controlled the Wildcat Haven project.

The question is whether this tweet, read in that context, has the defamatory imputation

(identified as (e) above) claimed by the pursuer. In my view, it does not. There is nothing in

this tweet from which it can be taken that HTL is a disreputable company engaged in

diverting money offshore and in tax evasion. If there had been some evidence for

concluding that this tweet was read in the context of the blogs or other tweets posted in

September and October 2015 to which I have referred above, there may have been potential

for that imputation to have been made out, but there was no such evidence.

[68] For the reasons given above in relation to imputation (f), that imputation is also not

[69] The result of this reasoning is that a number of the defamatory imputations founded

upon by the pursuer are not the meanings which the ordinary reasonable reader would have

taken from the relevant material and so those claims cannot succeed. Some of the

defamatory imputations alleged by the pursuer are made out as meeting that test, but in

relation to those imputations defences raised by the defender are established and so these

claims must also fail. It is apparent that there are a number of meanings which the pursuer

relies upon which are not true meanings and indeed are overstatements by the pursuer of

what was actually stated. These include the pursuer’s allegations that the defender referred

to it as the same entity as HTL and that the pursuer itself was “a tax dodging scam designed

to con the public out of money and then funnelling money donated to wildcats to the

Channel Islands, to line the pockets of corporate fat cats and the aristocratic gentry”.

[70] In the various publications founded upon, the defender made four untrue

statements. Firstly, in blog 1, that DW was at that time a director of HTL and a trustee of

HTCTS, the latter point also being incorrectly stated in blog 2. Secondly, in blog 2, that

HTCTS was at that time the asset-lock of the pursuer. Thirdly, in a tweet, that HTL ran or

controlled the pursuer. Fourthly, in a Facebook post (read in isolation), that Wildcat Haven

had been dumped by its bankers and service providers. Apart from the first point, which

was mistakenly confirmed by an authority in Guernsey, there was no proper basis for the

defender to reach these conclusions. The true position in relation to the second point was

available to the defender when he searched the records of the pursuer at Companies House,

but he failed to notice the amended articles of association of the pursuer which changed the

asset-lock from HTCTS to another entity. The third and fourth points appear to be

somewhat careless observations. However, the fact that the defender has made certain

statements which are untrue does not itself mean that the defamatory allegations

complained of by the pursuer were made. I have taken the untrue statements into account

and already explained why they do not have that result. For the defence of fair comment to

be available, it is not necessary that every fact founded upon is true. Moreover, to the extent

it may apply as noted above, the defence of veritas is founded upon statements being

substantially true. The fact that there are these untrue statements made within the material

complained of does not alter my views as to defamatory meanings and the available

defences. The statements in the blogs are, however, relevant to the issue of Reynolds

[71] The pursuer’s fourth plea-in-law is that the defender’s publications having been

actuated by malice, the fourth plea-in-law for the defender (dealing with veritas) should be

repelled. That contention is not relevant: if the statements of fact were substantially true,

malice cannot affect that defence. Malice is not averred by the pursuer to apply in any other

context. For that reason alone, the pursuer’s position on malice cannot succeed. However, it

is appropriate that I express my views on the points raised in the pursuer’s submissions.

The pursuer submitted that the defender was driven by malice and that there was a

dominant intent to injure. Malice was said to be demonstrated by alleging that the pursuer

operated in a tax haven when he knew that to be untrue. The pursuer also claimed that the

defender was fully aware that HTCTS were no longer the asset-lock for the pursuer well

before the publication of blog 2. Further, the pursuer contended that the defender knew

very well that selling souvenir plots was legal. There was, the pursuer claimed, a relentless,

unprovoked defamatory campaign against it, using multiple platforms. The publications

were said to be reckless. In relation to the main defamatory sting, the pursuer submitted that

the defender admitted that he never thought that the pursuer operated through a tax haven.

The pursuer also argued that the defender never believed the truth of comments made in

blog 2 about the gift of land by HTL to the pursuer. The defender argued that the issue of

malice had no real part to play in these proceedings. In any event, malice (as defined in the

[72] In relation to malice, the leading authority is Horrocks v Lowe, referred to by

“that a pursuer in a defamation action may aver and prove malice either (i) by

averring and proving that at the time at which the statement was made its maker

knew that what he or she was saying was untrue (or had that wholly reckless

indifference to truth which the law in cases such as fraud equiparates with positive

knowledge of untruth) or (ii) by averring and proving that the statement was made

predominantly for some private spite or ulterior motive divorced from the proper

use of the privileged occasion. On the other hand the fact that the maker of the

statement is by reason of the matter with which he is concerned ill-disposed, or

unfriendly towards, or prejudiced against the person who is the subject of the

statement or to whom the statement relates does not amount to ‘malice’ in the legal

As noted above, malice is not part of the equation for the purposes of the defence of fair

comment and it is also irrelevant to the defence of veritas. The only potential relevance for

present purposes is in relation to Reynolds privilege and whether the defender’s writings

constituted responsible journalism: if actuated by malice, they would not do so.

[73] In my opinion, the pursuer’s submissions about malice (which were in any event not

the subject of specific averments) are without foundation. Mr Wightman was a credible and

reliable witness. He gave his evidence in an honest, straightforward and coherent manner. I

accept his evidence about what he knew and did not know at the time of the various

publications. The suggestion that he made statements that he knew were untrue simply has

no proper basis. He did not state that the pursuer operated in a tax haven. In relation to

HTCTS as the asset-lock, he openly accepted that the information that the pursuer had

changed the asset-lock to a different entity was available at Companies House and that

when doing the electronic search he should have spotted it, but did not, as he thought the

relevant documents were things he had seen before. The pursuer’s further assertion that the

defender acted as an internet troll is manifestly unsupported. The pursuer’s allegations of

[74] In light of the conclusions I have reached about the meaning of the publications and

the defences thereto, the issue of Reynolds privilege does not arise for consideration. It was,

however, the subject of fairly detailed submissions and I shall briefly give my views as to

whether it would apply in the event that my conclusions above are incorrect. Reynolds

privilege, or public interest privilege, is recognised in Scotland: Adams v Guardian

Newspapers Ltd, following Reynolds v Times Newspapers Ltd. For present purposes, the two

most important authorities on this topic are the decision of the House of Lords in Jameel v

Wall Street Journal Europe Sprl and of the Supreme Court in Flood v Times Newspapers Ltd. The

plea of privilege should be directed at the actual publication and not at the various

meanings or innuendoes which the pursuer claims to arise from the words of the

publication: Gatley on Libel and Slander (12th ed., at 27.26). The standard of responsible

journalism is to be applied “in a practical and flexible manner” and not “exclusively by

reference to the single meaning which the law attributed to the particular words” (Flood,

para [128]). As is made clear in Jameel, it is the publication as a whole that has to be assessed

when considering the public interest, not merely the particular defamatory allegations of

which the pursuer complains. If the article as a whole is in the public interest, the next

question is whether the inclusion of the defamatory statement was justifiable (Jameel,

para [51]). The question of whether the defamatory statement should have been included is

often a matter of how the story should have been presented (ibid). The inquiry then shifts to

whether the steps taken to gather and publish the information were responsible and fair

(Jameel, para [53]) and hence constituted responsible journalism. As Lord Hoffman observed

“…the defence is of course available to anyone who publishes material of public

interest in any medium. The question in each case is whether the defendant behaved

fairly and responsibly in gathering and publishing the information. But I shall for

convenience continue to describe this as ‘responsible journalism’.”

A number of more detailed propositions are set out in Jameel. The reasoning in Flood is

consistent with that in Jameel, and adds some further guidance. There is no need to set out

these propositions here, but I have taken them into account. A well-recognised instance in

which Reynolds privilege may arise is that of consumer protection. In that area, even where

individual criticisms might be made of the publisher, an honest publication alerting the

public to concerns as to the validity of certain activities is likely to be privileged: see eg GKR

Karate (U.K.) Limited v Yorkshire Post Newspapers Limited and Others (No. 2) (at 429-430).

[75] Applying these principles (and I stress that this issue only arises if my earlier

conclusions are incorrect), I conclude that the defence of Reynolds privilege would not have

been made out. Reynolds privilege cannot in my view apply to the tweets or Facebook post

made in this case, and I do not understand the defender to suggest otherwise. The principal

reason for reaching that view is the nature and content of the tweets and the post: they are

simple and short statements which do not constitute journalism of the kind referred to in the

case law. Turning to the blogs, including the update and the addendum, I accept that these

relate to a matter of public interest, that is, the sale of souvenir plots. I also give appropriate

weight to what might be called the editorial judgment of the defender and overall I accept

that he sought to act reasonably. I also take into account that if the thrust of the blogs is true,

and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have

the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.

Failure to seek comment in advance of publication is a factor, but will not in and of itself

automatically be fatal to the defence, and will only have that result if it makes the journalism

[76] In applying the standard of responsible journalism in a practical and flexible manner,

I nonetheless conclude that the blogs do not meet that test. There was an important factual

inaccuracy contained in the blogs, as noted above. While it is correct that the defender did

research and sought verification on a number of the matters mentioned in the blogs, he

made a material omission in failing to take into account that the pursuer had altered the

identity of its asset-lock from HTCTS to another entity; this was stated in the altered articles

of association that he came across when searching the records, but did not peruse. This

resulted in the false statement to that effect in blog 2. The defender made the statement

despite the director of the purser having advised him, several months beforehand, that the

company had already sent in paperwork replacing HTCTS with another organisation and

that the records would be updated shortly. If the pursuer’s allegations of defamation

founded upon that statement had succeeded, the defender’s failure to peruse the public

documents lodged by the pursuer would have been a key factor. More importantly, on the

information available to me, the pursuer is a small company engaged in a genuine scheme

aimed at the conservation of wildcats, run by well-intentioned and enthusiastic individuals.

This must have been apparent to the defender, at least as being a serious possibility. The

scheme was still seeking to get off the ground around the time of blog 1, as the defender was

fully aware. There was no urgency to publish either of the blogs; unlike a newspaper

seeking a scoop, there was no specific newsworthy matter that had just occurred and

required immediate publication. The defender had, at his leisure, put together the contents

of the blogs. In those circumstances, responsible journalism carried with it the need to seek

comments on behalf of the pursuer in advance of publication. I accept that the contents of

an email from a director of the pursuer were placed as an update of blog 1 the day after its

publication, but that does not affect the impact of the blog on the date of publication.

Moreover, the terms of the email were not established on the part of the defender to

represent what might have been said on behalf of the pursuer had it been given advance

notice. In these circumstances, if (and of course only if) the blogs and comments had indeed

defamed the pursuer in the manner alleged, publication without seeking comment from the

pursuer would have resulted in the test for responsible journalism not being met.

Accordingly, if, contrary to the decisions I have reached, the defamatory meanings alleged

by the pursuer were made out and no other defence was available, the defence of Reynolds

[77] As I have explained, the defamation claims made by the pursuer fail because the

meanings alleged are not made out, or available defences apply. The pursuer’s claim for

damages (in the sum of £750,000) must fail. It is however appropriate that I record my views

on the damages claim. A corporate body cannot claim solatium for hurt feelings, as it has no

feelings to hurt (Norrie, Defamation p 66). In Lewis v Daily Telegraph (at 262), quoted in Jameel

“A company cannot be injured in its feelings, it can only be injured in its pocket. Its

reputation can be injured by a libel but that injury must sound in money. The injury

need not necessarily be confined to loss of income. Its goodwill may be injured.”

In Jameel, by a majority, the Appellate Committee held that a trading company with a

reputation but no actual trade in the UK was entitled to recover general damages for libel

without pleading or proving special damage if the publication had a tendency to damage it

in its way of business. There is no Scottish authority applying Jameel, but in my view the

approach fits with that in Waverley Housing v BBC where Lord Cullen said (at 12-13):

“I am satisfied that as a matter of general principle it is open to the second pursuers

to claim general damages, as opposed to specific damages based on the loss of

particular contracts or the diminution of turnover. However, it has to be recognised

that the fundamental basis of any award of damages to a company pursuer is

Thus, patrimonial loss remains as the key requirement, but it can be established by showing

damage to goodwill, or a tendency to damage the company in its way of business, rather

[78] Two heads of loss are pled here: losses resulting from a proposed deal to purchase

Arkaig forest; and lost sales of souvenir plots. In relation to Arkaig forest, the purchase was

to be made by the pursuer in partnership with ACF and funded by a grant of £500,000 from

HTL. After blog 1, ACF withdrew from the proposed partnership. Mr O’Donoghue

explained that ACF had been actively seeking the pursuer as a partner and doing everything

it could to facilitate the purchase of forest land by the pursuer, before blog 1. The forest was

worth £495,000 and had an annual rental value of about £13,000. Various lost opportunities

were said to have resulted, including the generation of further revenue from the forest. In

relation to lost sales, the pursuer averred that in the fifteen days preceding the publication of

blog 1, sales revenue of £4,761.32 (£317.42 per day) had been generated. In his evidence,

Mr O’Donoghue stated that the impact of the defamatory imputations was still being felt

and the relationship between the pursuer and the press, media and local schools had

changed completely. Relations with the replacement asset-lock entity and the press had also

been damaged. The pursuer’s fund raising had “got off to a fantastic start, raising

thousands of pounds in around a couple of weeks” which then, after the blogs “dwindled to

[79] The defender submitted that in relation to the loss of the Arkaig deal, the evidence

did not support that having occurred as a result of the blog. As to loss of sales, there was no

satisfactory evidence of a downturn in sales, or that it was caused by the blogs or other

publications, or to what extent any such downturn had resulted in actual loss to the pursuer.

No accounts had been produced and no evidence had been led from a forensic accountant,

despite the pursuer having accepted at a previous hearing that this would be necessary.

[80] I conclude that the pursuer has failed to prove any loss. In relation to the Arkaig

forest matter, the evidence of Mr Servant refuted in its entirety the factual basis presented by

the pursuer for this alleged loss. In short, his position was that while the blog gave a

negative impression, the true reason for ACF withdrawing from the deal was delay and

failures on the part of the pursuer to progress matters and ACF’s desire to engage with the

Woodland Trust as the appropriate partner. Turning to losses said to arise from loss of

sales, there was simply no proper basis in the evidence from which any such loss could be

established. The evidence about any actual decline in sales was at best unclear (partly

because in December 2015, after blog 1, the pursuer apparently enjoyed its highest ever

sales) and in any event there was simply nothing to show the net effect in monetary terms,

having regard to costs and expenses, of the decline in sales. I have had regard to the fact

that after the defender’s publications there was some evidence of reactions which were

adverse to the pursuer, expressed on the defender’s website and on social media. If one or

more of the significant defamatory imputations had been established, with no defence, there

may arguably have been some ground for awarding general damages within appropriately

modest bounds. However, if only less significant defamatory imputations had been

established, I would have found it impossible, on the evidence led, to conclude that any

damage to trading reputation was thereby caused; it could equally have resulted from the

statements by the defender which are legitimate because of the defences of fair comment or

[81] Certain documents lodged as productions and founded upon by the pursuer were

said to have emanated from HTL. However, in cross-examination of Mr O’Donoghue,

reference was made to the electronic “properties” records of these documents. Some of these

records showed either a different date or a different author (namely a person associated with

the pursuer) from the date or author (a person from HTL) stated in the paper versions. The

defender relied on this point as indicative that these documents could not be accepted as

what they bore to be. There is certainly force in this submission, but the difficulty is that the

court did not hear evidence in any detail as to how, when and by whom these documents

might have been created, saved or revised and on that basis it is not possible to infer

anything negative about the pursuer’s position in respect of these documents. The defender

also argued that the absence of anyone from HTL to speak to the matters complained of by

the pursuer was worthy of comment, and allowed the court to draw inferences favourable to

the defender: Gateway Assets Ltd v CV Panels Ltd (at [59]). However, I do not accept that

there are any such specific inferences capable of being drawn from that fact in the present

[82] For these reasons, the pursuer’s claim fails. Accordingly, I shall repel the pursuer’s

pleas-in-law, and sustain the second, third, fourth and fifth pleas-in-law for the defender in

the manner and to the extent explained above, and grant decree of absolvitor.

“If you plan to set up a fundraising campaign for an environmental project, it is a

good idea to think carefully about who is involved and what techniques you plan to

Wildcat Haven is a project designed to protect the Scottish Wildcat by preventing

hybridisation with feral cats and providing a network of reserves to manage as

Yesterday, it launched its campaign. Sponsorship has been provided by Volkswagen,

a company responsible for polluting the environment with nitrous oxide emissions

that it attempted to conceal through one of the biggest corporate frauds of recent

decades. The other sponsor is our old friend Highland Titles, a company based in

Alderney that is wholly owned by a charitable trust (Highland Titles Charitable

Trust of Scotland) registered in Guernsey. See my blog of February for further

Some time ago, Highland Titles Ltd. blocked my IP address but it came as something

of a surprise to discover that I have also been blocked from Wildcat Haven’s website

despite only having just seen it. Despite this, I have access via a proxy IP in

Highland Titles appear to have established a very close relationship with Wildcat

Haven which operates via Wildcat Haven CIC (Community Interest Company) and

Wildcat Haven Enterprises CIC. The Registered Address of both is in Cornwall. One

of the defining features of a Community Interest Company is the asset lock –

provision that in the event of winding up, the assets must transfer to a nominated

body that is a company interest company, charity or Scottish charity; or a body

established outside Great Britain that is equivalent to any of those persons.

In the case of Wildcat Haven CIC, the nominated body is a community-based

company, Sunart Community Company. The money, however, is being raised by

Wildcat Haven Enterprises CIC and the nominated body here is Highland Titles

Charitable Trust for Scotland. Thus, in the event of Wildcat Haven Enterprises CIC

being wound up, its assets will be taken over by Highland Titles Charitable Trust for

Wildcat Haven Enterprises CIC was incorporated on 30 June 2015 with two

Directors, [EO and DW]. [DW] is a Director of Highland Titles Ltd and a Trustee of

Wildcat haven has adopted Highland Title’s dubious methods of selling small

souvenir plots of land and claiming that the purchaser is the owner (see extensive faq

to this effect). This claim was comprehensively debunked in February this year by

legal blogger loveandgarbage. If there remains any doubt, here is the content of a

letter written by [a university law professor]… to the Daily Record newspaper.

Under Scots law, ownership of land passes from seller to buyer by registration in the Land

of the Land Registration etc (Scotland) Act 2012. (The previous law was essentially the

(“Souvenir plot” is a term defined in section 22 of the 2012 Act.)

Therefore, if a souvenir plot is sold, registration is required, if the buyer is to acquire

But the Land Register does not accept souvenir plots: this rule is set out at section 22 of the

So if a company sells a souvenir plot, the sale cannot be completed. The buyer of the plot does

not become owner of the plot. Ownership of such plots remains with the company.

Whether buyers of souvenir plots are informed that the seller will retain ownership is

[The professor] should know… See also, a recent academic paper by [JR] and [MC]

The plots being offered for sale by Wildcat Haven cost from £30 to £250 for one

square foot of land which purchasers are assured, gives them a “personal right to a

souvenir plot of land in Wildernesse Wood and the opportunity to change their

name to Lord or Lady Wildernesse. Wildernesse Wood is described as “part of the

first Wildcat Haven”. “We are asking you to help us by actually buying part of the land we

So where is Wildernesse Wood? The Wildcat Haven website does not say, but from

this promotional video, it is clear that it is a plot of land above Loch Loyne on the

In the video, Dr Paul O’Donoghue is filmed standing in the wood. He claims that

“Every square foot of land we buy has a direct positive impact on the Scottish wildcat. By

supporting this project, you’re helping save the Scottish wildcat step by step.”

First of all, this land is, in fact owned by Highland Titles Ltd. who are already selling

souvenir plots in a “nature reserve” they have named Bumblebee Haven where you

can purchase plots ranging from 10 square feet (£49.99) to 1000 square feet (£499.99)

and call yourself Lord or Lady Glencoe (even though the land is 50 miles north of

The land was acquired in February 2014 and the title can be seen here and the plan

here. The land is 75ha in extent which, if all sold in 10 square foot plots would

generate £40.35 million in sales revenue paid to a company in Alderney in the

But the more fundamental problem is that the Wildcat Haven project is in

The land that supporters are being invited to acquire in not only already owned by a

company in Alderney and being sold plot by plot for bumblebees, this “first wildcat

haven” is 60 miles to the north of Ardnamurchan and Morven and well outside the

I offer this information in the spirit of consumer advice to anyone considering taking

up the offer to become the owner of a square foot of land to create a Wildcat Haven.

As an addendum to the Highland Titles blog in February, I contacted the Chief

Minister of Guernsey [JT] to ask whether it would be possible to examine copies of

Annual Returns and Accounts of both Highland Titles Ltd., registered in Alderney

and Highland Titles Charitable Trust for Scotland, registered in Guernsey. As I

“Revenue is paid into a company registered in Alderney but as no accounts are published, it

is impossible to be sure. The sole share is held by [W and M] as Trustees for the Guernsey

charity. Under the law of Guernsey, no charity is obliged to provide accounts for public

inspection and it need only file accounts under certain circumstances.

Thus nobody knows if in fact the charity is in receipt of any funds whatsoever. As the sole

shareholder it is not entitled to have any of the revenues of Highland Titles Ltd. transferred to

it. These revenues may well be paid out by the Alderney company as management fees or any

[JT] informed me that under Guernsey law, the charity is not required to submit any

financial returns and access to the Alderney company records would only be

available to law enforcement agencies if there was evidence of criminal conduct.

Thus, because this land is owned in an offshore tax haven, we are unable to obtain

any information about what happens to the money generated by selling off their

(1) There is some disagreement over the appropriate strategy to be adopted to

save the Scottish wildcat. An official project, Scottish Wildcat Action is being run by

20 organisations with the support of the Scottish Government and Forestry

Commission among others. Those behind the Wildcat Haven project, however, have

The following response was emailed to me by [EO] and posted on the Wildcat Haven

website here. The response is also contained in a comment below this post together

Just hoped to respond briefly to your primary concerns about the Wildcat Haven project.

Highland Titles Charitable Trust is currently listed as our nominated body, it is acting as a

placeholder whilst we agree a few local organisations in the West Highlands who would be

best placed to become the ongoing nominated body. Of course, you’ll have to wait and see on

this one, but we have already sent in paperwork replacing HT with another organisation, I’m

Our website repeatedly states that the plots being sold are souvenir plots and “a bit of fun”,

our own FAQ outlines that registration of souvenir plots is legally impossible so this seems

In terms of location, the current Haven fieldwork area is in West Lochaber (Ardnamurchan,

Morvern and Sunart). We have been highly successful in neutering feral cats in this area (we

have neutered 50 in the last 7 months alone, leaving close to 500 square miles free of intact

feral or pet cats) and are now ready to expand. You are right to highlight that the land in Loch

Loyne is north of the current Haven area, however that is the very point, we are expanding

northwards and the long term goal has always been to cover the entire Highlands west of the

Great Glen. Loch Loyne is ideally situated being to the east of the Knoydart peninsula and

near to a major land bridge to the rest of the Highlands, which needs to be protected from feral

cat migration. Wildcat monitoring activities are already underway in the area, we are also

looking to start operations in Sutherland which you will note is also well north of the current

Haven zone, as well as looking to buy land within the current fieldwork area.

Part of the Loch Loyne site has been gifted to us by Highland Titles and no plots in the area

provided to us has been previously sold, so it was free for them to pass on, allowing us to offer

actual physical plots to customers immediately, rather than just a promise of buying land in

Wildcat Haven has been around protecting wildcats since 2008, our team comes with

considerable scientific and conversation credibility, we are currently the only effort to protect

wildcats in the wild rather than place them in captivity and our work has been commended

and supported by organisations such as Humane Society International for its exceptional

standards of animal welfare and delivery of humane feral cat control, as well as receiving

considerable coverage across national media recording our work with feral cats, wildcats, local

We’d also like to take this opportunity to thank you for providing us with reduced rate access

to the Who Owns Scotland database around 2008/2009 when the project was starting up and

needed to start communicating with landowners: you helped us get where we are today,

thanks a lot for your support and promotion of the Wildcat Haven projects.

1. It may be a bit of fun but you are asking folk to help you by “actually buying parts of

the land we plan to conserve” You need to be much clearer that people who spend £100 do not

2. You say that part of the Loch Loyne site has been gifted to you. Can you tell me when

this transaction took place and when it was submitted to the Registers of Scotland for

5. What is the role of Highland Titles in your fundraising? Do they receive any

“I intended to have published this blog on Highland Titles Day (10 February – see [MC’s]

Last September, I blogged about the latest effort by Highland Titles Ltd. to raise lots

of money from people who think they get to own some land in Scotland and help

conservation at the same time (see a recent advert in BBC Wildlife magazine – 1.6Mb

Highland Titles Ltd. is a company registered in Alderney. It is owned by Highland

Titles Charitable Trust which is registered in Guernsey. See my blog of 12 Feb 2015

for further background. The company makes its money from purporting to sell small

plots of land as “souvenir plots”. The controversy over the affairs of this company

has been generated because no-one who buying such plots can in law become the

owner of the land and because the financial affairs of the company remain opaque,

In its latest effort to garner greater respectability, Highland Titles has become

involved with a conservation project called Wildcat Haven CIC. The fundraising arm

of this organisation is a Community Interest Company called Wildcat Haven

Enterprises CIC with its registered office at Sage & Co Chartered Accountants in

Denbighshire, North Wales. There are two Directors of the company, [EO] and [DW].

[DW] is resident in Alderney and is also a Director of Highland Titles Ltd and a

One of the requirements of a Community Interest Company is the provision of an

asset lock that restricts the disposal of assets of the CIC. Assets can be transferred to

another CIC or charity and such a body must be designated in the Articles of the

CIC. In the case of the Wildcat Haven Enterprises CIC, the designated body to

become the potential recipient of the assets is Highland Titles Charitable Trust for

In my response to my September blog, [EO] (who is a Director of both Wildcat

Haven CIC and Wildcat Haven Enterprises CIC) responded and I published the

response as an update to the blog. In turn, I then posed a number of questions to

“I never received a reply but can provide an update on some of the questions.

1. The Wildcat Haven website still contains the claim “We are asking you to

help us by actually buying part of the land we plan to conserve.”

2. Following [EO]’s claim that part of the land had been gifted “to us”, I

checked the title and discovered that Highland Titles Ltd. remained the

owner and had gifted no land to Wildcat Haven. Interestingly, on 9

December 2015, however, Highland Titles Ltd. made an application to the

It remains unclear what financial arrangements have been entered into and why

[DW] is a Director and why Highland Titles Charitable Trust for Scotland is the

designated beneficiary of the assets of Wildcat Haven Enterprises CIC.

As I pointed out in my September blog, if all of the 75 hectares of Paitna

Wood/BumbleBee Haven/Wildcat Haven/Wildernesse Wood were sold even as 10

square foot plots, this would generate £40.35 million in sales revenue paid to a

company in Alderney in the Channel Islands. In normal circumstances, a

conservation project would be established as a charity and a trading body or

fundraising enterprise would be established as a whole owned subsidiary of the

Most recently, Wildcat Haven has been seeking to become involved in the

community acquisition of a Forestry Commission forest by Loch Arkaig.

Finally, a very significant development took place in early June 2015.

Highland Title’s bankers and corporate service providers in Guernsey gave notice of

Wildcat Haven Enterprises CIC was incorporated in 30 June 2015.”

“…specifically, what extent (ha) of land has been gifted to you and when was this

“…are there any wildcats resident in the Loch Loyne woodland?”

“…your website invites purchasers to help u “by actually buying part of the land we

“…do Highland Titles receive any payment or commission on souvenir plot sales?”

[in response to this tweet by another person: “Become a Laird and save Scotland’s

“Free advice to charities. Have nothing 2 do with souvenir plots, lords and ladyships

[in response to this tweet by another person: “Become a laird – and help save the

#wildcat”, referring to a newspaper article promoting the pursuer’s conservation

“LATEST BLOG on Highland Titles/Wildcat Haven and being dumped by their

“I am extremely grateful to you for this Andy, as I’m sure many might have been

tempted to contribute to this ***** scheme, purely out of desire to help threatened

species and help Scotland’s wildlife. It is truly sickening that such a loathsome

“I completely agree with you it is sickening to think of people using other people’s

love for a beautiful endangered animal to spiv some money. It also angers me that

our laws are so weak for crimes against life. In this particular case I just urge you to

keep reading, keep watching how the story evolves. I’m counting on all of us to

And when we know for sure who’s been lying be happy to join you in throwing

“It’s totally appalling. Imagine sitting down and hatching this scam. And on such a

“Sadly… it’s what goes on in that sickening loathsome enterprise, currently operated

25 September 2015: “Latest scam from Highland Titles” along with a picture of

29 September 2015: “Fact that Wildcat Haven has blocked my IP address suggests

26 February 2016: [in response to this tweet by another person - “You have made

people think the Haven is a mere scam and said nothing to alter that perception”]

“Do u think it wise 2 be in bed with an offshoreCo whose bankers & service

“this Wildcat Haven project on the @bbcscotland news site, is the one run by the

"...@bbcscotland news it is the one where the fundraising arm is run by

Highland Titles – yes".

Scottish Court of Session Decisions