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Opinion: Campbell Deane

16 October 17

The SLC’s proposal to adopt the English “serious harm” test for defamation attempts to tackle a problem not found in Scotland, would add to costs and probably result in litigation moving to England

by Campbell Deane

When the Scottish Law Commission embarked on the project to reform defamation, its impetus for so doing was the English libel reforms under the Defamation Act 2013. The draft Defamation and Malicious Publications (Scotland) Bill reads like a wish list for those lobbying for greater freedom of expression. Alarmingly it also spells the likely demise of defamation litigation in Scotland.

During the consultation period, I and the Faculty of Advocates were the only parties to consider reform from the perspective of those seeking remedy. The position which I advanced was “What was in it for the pursuer?” The answer in the bill is “nothing”, and to state the obvious, without a pursuer there is no litigation.

Scaremongering and self-preservation, some might say, but I suspect that if the bill becomes law, litigation will flow to London. That is because of the flawed proposition that following the model of English reform will make Scotland a stronger forum for litigation, with the benefits of reduced legal costs and greater certainty of case law moving forward. It will not.

Take, for example, the introduction of a “serious harm” test. It will no longer be enough to show that reputation has been damaged. The pursuer will also need to show serious harm. This test mirrors the 2013 Act and creates an additional hurdle for the pursuer over that which currently exists. It was introduced in England to stop worthless actions, out-of-control costs and libel tourism, none of which inhibitors are in play in Scotland.

By harmonising two jurisdictions where parties can sue for damage in either, the system that is playing catch-up is at a significant disadvantage, particularly when case law has developed in the other. The absence of a definition of the serious harm threshold requirement means that the Scottish courts may well continue to do what the Commission wanted to reform, namely adopting English judgments into Scotland. That is because the English courts already have an established bank of case law in relation to the serious harm test.

But the Scottish pursuer will have to second-guess whether the Scottish courts will decide to follow their English counterparts. They will not know whether a different view of serious harm will be followed. It is expensive to make law. It is a lot cheaper to follow existing principles. By mirroring the English test, and removing the uniqueness of our system, one must consider why any pursuer would choose to raise proceedings in Scotland, with slower recourse to restoring reputation, the hurdles and costs involved in creating law, smaller awards and increased costs. It may indeed be bordering on professional negligence not to advise a pursuer of the prospective rights of remedy under English law (and indeed the benefits of pursuing in England), particularly for online publication with a UK audience.

While it may have political overtones, one would have thought that with the number of English libel cases on the decline following the introduction of the 2013 Act, Scotland would have taken the opportunity to promote litigation in its jurisdiction by being different to England and allowing parties a greater access to justice rather than placing a further barrier in the way.

Currently, one of the main advantages from the pursuer’s perspective in pursuing litigation in Scotland, is the reverse side of the reason the 2013 Act was introduced. In short, the cost of litigation in Scotland is considerably less than in London. The introduction of a further hurdle, by the serious harm test, will result in further cost and expense being required to be met by the pursuer at the earliest stage in the litigation to establish serious harm.

The lobbyists argue that the bill will bring about a significant barrier to vanity cases being brought solely to silence others and stifle criticism and debate. While I do not accept that such cases occur in Scotland, the lobbyists are right on one thing. There will be a barrier. The harmonisation of the serious harm test across the UK will result in parties within Scotland seeking remedies in London rather than in Scotland. The draft bill will effectively encourage the movement of litigation to the English courts.

Campbell Deane is a partner with Bannatyne kirkwood France & Co, Glasgow

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