James Gillespie and another against Alan Wardrop (Court of Session)

Factual and Procedural Background

The Plaintiff and Co-Plaintiff ("the Plaintiffs") are directors of Company A, a charity involved in education and care, which acquired a 27.5% shareholding in Company B, a football club. This shareholding entitled Company A to appoint two directors to Company B's board, which the Plaintiffs were appointed to and remain as directors. The Defendant was also a director of Company B until November 2022.

The dispute arose from two statements made by the Defendant after he ceased to be a director. The first was a campaign statement made on 1 May 2023 as part of the Defendant's bid for election to the board of the majority shareholder in Company B. The statement alleged that the Plaintiffs failed to disclose plans by Company A to build on land owned by Company B, which the Plaintiffs denied. The second statement was published on 14 May 2023 in a national newspaper and quoted the Defendant accusing the Plaintiffs of lying and perpetrating a cover-up.

The Plaintiffs claimed these statements were defamatory, damaging their reputations, and sought damages and an interdict to prevent further such statements. The Defendant admitted making the statements but denied the meanings alleged, contending that the statements were not actionable due to lack of serious harm and relying on defences including truth, publication on a matter of public interest, honest opinion, and fair retort.

The case proceeded to a proof before answer, with evidence over six days from the parties and several witnesses, followed by detailed submissions and oral argument.

Legal Issues Presented

1. Whether the statements made by the Defendant were defamatory of the Plaintiffs.
2. Whether the Defendant's defences of truth, publication on a matter of public interest, honest opinion, and fair retort applied to the statements.
3. Whether the Plaintiffs suffered or were likely to suffer serious harm to their reputations as a result of the statements.
4. Whether an interdict should be granted to prevent the Defendant from making further defamatory statements.
5. If liability were established, the quantum of damages to be awarded to the Plaintiffs.

Arguments of the Parties

Plaintiffs' Arguments

• The Plaintiffs denied any plan or intention by Company A to build on land owned by Company B.
• They asserted that the statements falsely alleged breaches of fiduciary duty and conflicts of interest.
• The Plaintiffs contended the statements were defamatory and caused serious harm to their reputations.
• They argued that the Defendant had not established the truth of his allegations.
• They maintained that the defences of publication on a matter of public interest, honest opinion, and fair retort did not apply.
• The Plaintiffs sought damages and an interdict preventing further defamatory statements.

Defendant's Arguments

• The Defendant accepted making the statements but disputed the defamatory meanings attributed by the Plaintiffs.
• He asserted that the statements either bore meanings restricted to reasonable grounds to investigate or were expressions of honest opinion.
• The Defendant relied on the defences of truth, publication on a matter of public interest, honest opinion, and fair retort.
• He argued that the statements were made on the basis of credible documentary evidence and his reasonable belief in their truth.
• He contended that the Plaintiffs had not suffered serious harm to their reputations.
• The Defendant denied that an interdict was necessary as there was no reasonable apprehension of repetition.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Koutsogiannis v The Random House Group Ltd [2020] 4 WLR 25	Approach to determining the natural and ordinary meaning of statements in defamation.	The court applied the principles of reasonableness and context, avoiding overly literal interpretations, to ascertain the meaning of the statements.
Lachaux v Independent Print Ltd [2019] UKSC 27	Test for serious harm requirement in defamation claims.	The court considered the scale of publication, awareness, and gravity to assess whether serious harm was caused.
Serafin v Malkiewicz [2020] UKSC 23	Defence of publication on a matter of public interest under defamation law.	The court examined the reasonableness of the Defendant's belief and the public interest in the statements published.
Harcombe v Associated Newspapers Ltd [2024] EWHC 1523 (KB)	Principles relating to the defence of honest opinion in defamation cases.	The court applied a flexible and holistic approach to determine whether statements were opinions based on evidence.
Gray v Scottish Society for the Prevention of Cruelty to Animals [1890] 17 R 1185	Common law defence of fair retort in defamation.	The court considered whether the Defendant's statements were a fair answer to the Plaintiffs' attacks.
Cooke v MGN Ltd [2014] EWHC 2381 (QB)	Timing of assessment of serious harm in defamation claims.	The court considered the appropriate timing for assessing reputational harm.
Wasserman v Freilich [2016] EWHC 312 (QB)	Whether allegations of dishonesty are statements of fact or opinion.	The court noted that allegations of dishonesty usually constitute factual allegations.
Burki v Seventy Thirty Ltd & Ors [2018] EWHC 2151 (QB)	Allegations that appear to be fraudulent may be expressions of opinion depending on context.	The court held that some statements may be opinions despite involving allegations of fraud.
Greenstein v Campaign Against Antisemitism [2019] EWHC 281 (QB)	Allegations of lying may be expressions of opinion subject to context.	The court found that allegations of dishonesty can be opinions depending on how they are presented.
Triplark Limited v Northwood Hall (Freehold) Limited [2019] EWHC 3494 (QB)	Distinguishing between bare comment and opinion based on extraneous material.	The court emphasized context and the clarity of reference to facts in determining whether a statement is opinion.
Kemsley v Foot [1952] AC 345	Distinction between factual allegations and statements of opinion in defamation.	The court highlighted that bare allegations without stating facts are treated as factual allegations.

Court's Reasoning and Analysis

The court carefully evaluated the credibility and reliability of the parties and witnesses, finding no significant evidence of deliberate falsehoods by either side. The central factual issue was whether the Plaintiffs had a plan to build a Wellbeing Centre on land owned by Company B.

Documents and evidence indicated that Company A’s acquisition of shares in Company B was not linked to land acquisition. The land owned by Company B was too small and unsuitable for the project, and there was no formal approach or plan to acquire it. The application for public funding referenced land around the stadium area, but the precise location was speculative and subject to ongoing discussions.

The court determined the natural and ordinary meaning of the Defendant’s campaign statement was that the Plaintiffs failed to disclose plans to build on Company B land, which was defamatory. The Herald statement was found to convey an allegation of cover-up and lying by the Plaintiffs.

The defence of truth failed as the Defendant did not prove the central allegations true. However, the court found that the statements were published on matters of public interest and that the Defendant reasonably believed publication was in the public interest, having taken reasonable steps to verify the information. The Herald statement was also an honestly held opinion based on facts and privileged statements available at the time.

The defence of fair retort was rejected as the Defendant's language went beyond a fair response to the Plaintiffs' comments.

Overall, the court concluded the statements were defamatory but protected by the statutory defences of publication on a matter of public interest and honest opinion, resulting in the Plaintiffs’ claims for damages being unsuccessful.

Holding and Implications

The court’s final decision was to REPPEL THE PLAINTIFFS' PLEAS-IN-LAW AND GRANT DECREE OF ABSOLVITOR, dismissing the defamation claims.

The court held that although the statements were defamatory, the Defendant successfully established the statutory defences of publication on a matter of public interest (for both statements) and honest opinion (for the Herald statement). The Plaintiffs did not succeed in proving the truth of the allegations, but the Defendant's reasonable belief and public interest justification protected the statements.

The court declined to grant an interdict against the Defendant, reasoning that there was no reasonable apprehension of repetition, and the Defendant was now aware that the statements were not true and could no longer hold an honest opinion to justify repetition.

No new precedent was set by this decision. The direct effect is that the Plaintiffs’ claims for damages failed and no injunction was granted.