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OUTER HOUSE, COURT OF SESSION
[2018] CSOH 121
A183/16
OPINION OF LORD UIST
in the cause
JULIE McANULTY
against
SHEENA McCULLOCH
Pursuer
Defender
Pursuer: McBrearty QC, Ewen Campbell; Burness Paull LLP
Defender: R W Dunlop QC, Pugh; Shoosmiths LLP
19 December 2018
Introduction
[1] The pursuer in this action seeks an award of damages against the defender for
alleged defamation. Both were at the material time activists in the Scottish National Party
(SNP). The pursuer joined the SNP in September 2010 and was elected a councillor on
North Lanarkshire Council in May 2012. The defender first joined the SNP (Baillieston and
Uddingston Branch) as an associate member in 1967. She became the Parliamentary
Assistant to Richard Lyle, Member of the Scottish Parliament (MSP) for Bellshill and
Uddingston, on 1 April 2015. The pursuer avers that she was defamed by the defender in an
email dated 5 February 2016 sent by the defender to Ian McCann, the SNP’s compliance
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manager, and copied to various other people within the SNP and that the email was copied
by the defender or one of the recipients to the Daily Record, which published extracts from it
in an article published by it on 8 February 2016 on the front page of the newspaper, and also
on its website and its Twitter feed.
[2] The contents of the email, as typed, were as follows:
“CONFIDENTIAL – For The Attention of Ian McCann – Scottish National
Party Compliance Manager
Dear Ian
Having read in the daily record (sic) the story on Julie McAnulty I wish to raise
formally an incident of, what I consider, racism that involved Julie.
During the run up to the Ward 13 Thorniewood, North Lanarkshire By-Election
in July last year I was assisting with Steven Bonnars (sic) campaign and I recall,
on the first Saturday of the campaign, and being asked to take Julie by car to
Lincoln Ave to assist with canvassing. Once we had carried out the canvassing I
was told I had to return with her to the street stall.
On the journey back Julie was asking me about the trouble and in fighting in the
Bellshill branch and asked for my view on the trouble in Coatbridge. During this
discussion Julie made a comment which I found to be unacceptable. She asked if
I agreed with her that it was in her words “the pakis” that were causing the
problems locally and that we needed to get rid of them out of the party.
I outlined immediately that I was not happy with her comment as I know, and
respect many Muslim members locally. I informed her that what she said was
unacceptable and that I considered many of the people she was referring to as
friends. For the remainder of the journey she did not speak to me. Ever since
this Day (sic) Julie has ignored me and refused to speak to me.
I feel in view of the recent accusations that have come to light, both in the media
and within local politics. (sic) I have a duty as a party member to raise this with
Headquarters. As you are aware Julie has some strong support locally including
the backing of Phil Boswell. I feared at the time that I may suffer reprisals from
her supporters if I attempted to raise this. I feel now that I can’t stay silent that
an investigation is under way.
Regards
Sheena
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Sheena McCulloch
Membership number 1433512”
[3] The pursuer avers that she did not make the comments attributed to her in that email
and that the statements made by the defender of and concerning her were false and
calumnious. The defender avers that the content of the email was substantially true and that
it was prompted by her reading of a story relating to the pursuer in the edition of the Daily
Record dated 3 February 2016 headed “SNP Holyrood candidate accused of racism refuses
to sit beside Muslim party colleague at council meetings”. The defender averred in her
pleadings that the conversation referred to in the email took place in or about May or June
2015, but it was ultimately accepted by counsel on her behalf that the date of the car journey
in which the conversation is alleged to have taken place was 20 June 2015.
[4] On 22 January 2016 the Daily Record newspaper had published an article headed
“SNP race row No 2: Holyrood candidate accused of racism by Muslim party colleague
during explosive meeting”. Its content was as follows:
“It’s the second race row in days to hit the SNP, after we revealed Dundee councillor
Craig Melville had been suspended over racism claims.
An SNP Holyrood candidate has been accused of racism by a Muslim party
colleague, the minutes of an explosive meeting have revealed.
Julie McAnulty walked out of the meeting with eight others after her fellow North
Lanarkshire councillor, Dr Imtiaz Majid, won a key post.
And according to the minutes, Majid claimed there would have been no protest if he
had been white.
Majid also reportedly accused McAnulty of making a racist comment to him
previously, leaving her furious.
It’s the second race row in days to hit the SNP, after the Record revealed Dundee
councillor Craig Melville had been suspended over claims that he sent hate-filled
texts to a Muslim colleague.
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And it is a particular headache for First Minister Nicola Sturgeon because McAnulty,
as well as being a list MSP candidate, is a key aide to controversial Coatbridge
MP Phil Boswell.
Boswell faces a parliamentary standards investigation for allegedly failing to declare
a directorship.
The minutes, obtained by the Record, describe a heated row between Majid and
McAnulty at a party meeting in Coatbridge on January 10.
The Coatbridge and Chryston constituency branch was split into four this month
because of the huge growth in SNP membership. A new constituency association
was set up to oversee the new branches.
That meant an election for the vital post of association convener.
McAnulty and Boswell, who was not at the meeting, wanted their ally Paul Welsh to
get the job. But Majid won it after a tense series of votes.
The minutes say McAnulty and eight others who voted for Welsh then walked out.
They say members of the group were ‘shouting abusive language at the chair’ as they
left the room.
McAnulty returned to the meeting and was appointed treasurer.
But the minutes say that, as the meeting was about to end, Majid made his bombshell
claim of racism. The papers claim: ‘Imtiaz Majid said he was upset at the way
members had behaved by walking out.
‘He said he felt the way he had been treated by some of these members was due to
his colour. He said he didn’t believe there would have been a walkout had he been
white (a number of delegates nodded in agreement).
‘He also said he had endured racist comments previously.’
The minutes say McAnulty called Majid’s claim outrageous, and he then told her she
had made a racist comment towards him at a previous meeting.
The document adds: ‘Julie McAnulty banged the table and shouted at Imtiaz Majid,
saying she would take the matter further.’
The minutes also describe a delegate being accused of ‘misogyny’ during the
meeting, several incidents of shouting and swearing and a membership card being
being ‘violently thrown’ at the chairman, Duncan Ross.
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An SNP spokesman said: ‘We’re aware this meeting was bad-tempered, but we
understand there were no comments of a racist nature during proceedings and
there’s been no complaints of such since the event.’
Majid yesterday told us he could not comment on the row because a party
investigation was under way.
We tried repeatedly to contact McAnulty, by phone, email and at her Coatbridge
home. She was unavailable.
Majid, a wealthy property developer known locally as Jimmy, hoped to be the SNP
candidate for Coatbridge, Chryston and Bellshill at the general election.
He had majority support in the local party but SNP headquarters blocked his
candidacy after newspaper coverage of his bitter divorce. Boswell was brought in at
the last minute to replace him.
As well as the standards investigation, Boswell has been accused of hypocrisy over
his tax affairs.
He admitted benefitting from a legal tax avoidance scheme while working in the oil
industry after campaigning against such schemes. He said they were common
practice in the industry.”
[5] The Daily Record article of 3 February 2016 was headlined “SNP Holyrood
candidate accused of racism refuses to sit beside Muslim party colleague at council
meetings” and subtitled “Julie McAnulty has demanded North Lanarkshire Council
chamber is rearranged so she is no longer put next to Dr Imtiaz Majid”. Its content was as
follows:
“An SNP Holyrood candidate accused of racism is refusing to sit beside a Muslim
party colleague at council meetings.
Julie McAnulty has demanded North Lanarkshire Council chamber is rearranged so
she is no longer put next to Dr Imtiaz Majid.
The move comes after a race row between Majid and McAnulty at last month’s
meeting of the SNP’s Coatbridge constituency association.
The Daily Record has told how McAnulty staged a walkout with eight others after
Majid won the post of association convener.
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According to the minutes of the meeting, Majid claimed there would have been no
protest if he had been white.
He also reportedly accused McAnulty of making a racist comment to him previously
– an accusation she denies.
A source said: ‘Council officials couldn’t believe it when Julie asked to be moved so
she was not sitting beside a member of her party. The request was approved by the
leader of the SNP group.’
SNP bosses have been forced to cancel tonight’s planned meeting of the constituency
association because of the feud.
The party’s national executive took the decision after launching a probe into the row.
It means the constituency association have effectively been suspended months before
the Holyrood election.
An SNP source said: ‘It is appalling the party are dragging their heels. With such a
serious allegation you’d expect McAnulty to get her whip withdrawn.’
McAnulty is a key ally of Coatbridge MP Phil Boswell, who is facing an inquiry over
his register of interests and benefited from a legal tax avoidance scheme after
campaigning against them.
Scottish Labour said: ’Given the very serious allegations there must be an urgent
investigation by the SNP.’
Majid said he could not comment as a party probe was under way.
The SNP said: ‘The meeting is postponed while we examine the conduct of a
previous meeting.’”
[6] On Monday 8 February 2016 the Daily Record published a further article headed
“ ‘Get the Pakis out of the party’: SNP councillor Julie McAnulty at the centre of second race
row”. Its content was, so far as relevant, as follows:
“An SNP councillor told a colleague she wanted to ‘get the Pakis out of the party’,
officials have been told.
Holyrood candidate Julie McAnulty is already at the centre of a racism row.
And now an SNP activist has filed a complaint alleging she made the ‘Pakis’
comment.
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McAnulty is involved in a bitter feud with Dr Imtiaz Majid – a fellow SNP group
member on North Lanarkshire Council.
Sheena McCulloch, an SNP member for almost 40 years, notified the party leadership
about the alleged comments after reading about earlier racism claims in the Record.
The details are outlined in an official complaint lodged with the SNP’s compliance
officer Ian McCann and obtained by this newspaper.
MsMcCulloch says the exchange took place in July last year as the pair were
campaigning for the nationalists in the North Lanarkshire Council by-election.
She was driving Councillor McAnulty back from a canvassing session in Birkenshaw
when the alleged remarks were made.
…
Contacted by the Daily Record last night, Ms McCulloch confirmed the details of the
complaint but said she could not comment further due to an ongoing investigation
by party bosses.
…
Last night several sources within the SNP in Coatbridge expressed outrage that
McAnulty had not been suspended from the party over the allegations.
…
An SNP spokesman said: “The SNP takes a zero tolerance approach to racism in any
form. We have received Ms McCulloch’s complaint and are examining the claims
she makes.’
…
The Record revealed last week how McAnulty is refusing to sit beside Dr Majid at
council meetings.
She has demanded North Lanarkshire Council chamber is rearranged so she is no
longer put next to the Muslim businessman.
The move followed a bitter racism row between the two at last month’s meeting of
the SNP’s Coatbridge constituency association.
McAnulty staged a walkout with eight others after Majid won the post of association
convener.
According to the minutes of the meeting, Majid sensationally claimed there would
have been no protest if he’d been white.
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He also reportedly accused McAnulty of making a racist comment to him previously
– an accusation she denies.
SNP bosses were forced to cancel last week’s planned meeting of the constituency
association because of the feud.
The ugly saga is a particular headache for party leader Nicola Sturgeon because
McAnulty is a close ally of controversial Coatbridge MP Phil Boswell.
McAnulty works in Boswell’s constituency office and has appeared in videos he
funded with taxpayers’ money.
…
Majid, a wealthy property developer known locally as Jimmy, hoped to be the SNP
candidate for Coatbridge, Chryston and Bellshill at the general election.
He had majority support in the local party but SNP headquarters blocked his
candidacy after newspaper coverage of his bitter divorce.
Boswell ultimately won the seat in an SNP landslide.
McAnulty was not returning phone calls yesterday and there was no answer at her
Coatbridge home.”
[7] The case proceeded to proof before me. The pursuer led six witnesses: the pursuer
herself; Martin O’Neill, a local organiser for the Uddingston and Bellshill branch of the SNP;
Steven Bonnar, a member of North Lanarkshire Council since June 2015; Mrs Patricia
Spencer, a member of the Coatbridge and Chryston branch of the SNP since October 2014;
William Layden, a former branch organiser of the Coatbridge and Chryston branch of the
SNP; and Ian McCann, the Corporate Governance and Compliance Manager of the SNP.
The defender led eight witnesses: the defender herself; Alan Stubbs, a member of North
Lanarkshire Council for Coatbridge North; Richard Lyle, a member of the Scottish
Parliament since 2011, and formerly a member of North Lanarkshire Council for 30 years;
Mrs Anne Neilson, a member of the SNP; Mrs Marie Collins, a member of the SNP since
2014; Fulton McGregor, member of the Scottish Parliament for Coatbridge and Chryston
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since May 2016; William Marshall, a member of the SNP since 2015; and Mrs Jean Marshall,
also a member of the SNP since June 2015. The principal issue at the proof was whether the
pursuer had made the statement attributed to her by the defender in the course of the car
journey on 20 June 2015.
Did the pursuer make the statement attributed to her by the defender?
(i) Direct evidence
[8] The direct evidence on this point came from the pursuer, the defender and Steven
Bonnar. According to the pursuer and Steven Bonnar, Steven Bonnar was a passenger in the
car at the material time and no such statement was made: according to the defender he was
not in the car at the material time and such a statement was made. It is therefore necessary
to carry out a close analysis of the evidence of these three witnesses.
[9] The pursuer, who has a degree in music and Scottish Literature and teaches at a local
music school, was born and raised in Coatbridge. She became involved in local politics at
the time when there was a proposal to close the Accident and Emergency Department of
Monklands Hospital. She became involved in the campaign against its closure and was an
independent candidate in the 2007 election for the Scottish Parliament. She became
interested in health politics and joined the SNP (Coatbridge and Chryston branch) in
September 2010. She was elected an SNP member of North Lanarkshire Council in May
2016. In late 2015, because of the exponential increase in the number of members of her local
branch, it was decided to divide it into four parts- Coatbridge North, West and South and
Strathkelvin, all of which were to be overseen by the Constituency Association through an
Overseeing Committee. The atmosphere in the Coatbridge and Chryston branch had been
toxic from 2012 to 2016. No proper minutes or accounts were kept, there was bullying and
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people were picked on. Broadly speaking there were two rival factions. The pursuer
belonged to one of them, which just wished the branch to be properly run. After the influx
of new members following the independence referendum in 2014 those who sought to be
elected office bearers had to campaign for more votes. Before the Scottish Parliament
election in May 2016 the pursuer sought the nomination for Coatbridge and Chryston
against Fulton McGregor and the nomination for Bellshill and Uddingston against
Richard Lyle. She failed to obtain either nomination.
[10] The purser recollected reading the Daily Record article of 22 January 2016. As there
was no official route by which the newspaper could have got the minutes referred to, they
must have been leaked. The article was part of a smear campaign against her. She was at
the time a sitting councillor. Seats in the council chamber for a full council meeting were
allocated in alphabetical order. She had sat next to Imtiaz Majid for ten months without any
problem. She then became extremely nervous about this and thought she might be accused
of something else. She went to see the committee clerk and arranged to swap seats with
Steven Bonnar. Her moving seat from the one next to Mr Majid was not connected to his
race or the fact that he was a Muslim, as the subsequent Daily Record article of 3 February
2016 suggested. As there could not have been any official source for the article, she
concluded that it had been leaked by the opposing faction and that the campaign to smear
her had been ratcheted up. So far as the complaint made by the defender in her email of
5 February 2016 was concerned, she did not make the alleged statement, she had never used
the word “Pakis” and she had never said that we needed to get rid of them out of the party.
She found out about the defender’s complaint on Sunday 7 February 2016 as a result of a
voicemail left on her phone by David Clegg, a Daily Record journalist, telling her that
allegations had been made against her. On Monday 8 February 2016 the above article of that
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date appeared in the Daily Record. The pursuer thought it must have been leaked by
someone in the opposing faction and that it was an attempt to destroy her and her political
career.
[11] The day when the remark was alleged to have been made by the pursuer was
Saturday 20 June 2015, the first day of campaigning for a council by-election. The pursuer
and the candidate Steven Bonnar were in the defender’s car returning from a canvassing
session in Lincoln Avenue. The pursuer had been asked by Martin O’Neill, at a political
stall which had been set up in Market Place, Viewpark, to go with the defender and
Steven Bonnar to canvass in Lincoln Avenue. All three travelled in the defender’s car, which
had been parked “out of sight of the main drag” to Lincoln Avenue. The journey took about
five minutes. The defender drove, the pursuer sat in the front passenger seat and
Steven Bonnar sat in the back. At Lincoln Avenue they canvassed for less than an hour. As
the defender was turning her car to return to the stall a man with a dog ran up to the car and
asked if that was the candidate. She and Steven Bonnar got out of the car and the man
engaged Steven Bonnar in conversation. The pursuer got back into the car. She called
Steven Bonnar on his mobile phone to try to get him away from the man. After about five
minutes Steven Bonnar returned to the car and the defender drove back to Market Place.
The atmosphere in the car was OK. There was a conversation about dog grooming in the
course of which the defender said that two girls in the area had set up in competition with
her. The pursuer was emphatic that she would not have discussed with the defender what
the defender alleged. As the defender was allied with Richard Lyle she was part of the
problem. She did not know as a matter of fact why the defender had made the false
allegation, but she thought the defender was afraid that Richard Lyle would lose his job as
an MSP and she would consequently lose her job as his caseworker. The complaint made by
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the defender was part of a campaign against her (the pursuer). Following upon her
suspension from the SNP she was subsequently reinstated on 18 August 2016. The SNP did
not take any action against her. She was removed from the list of possible MSPs because she
had been suspended. She was deselected as a council candidate. She resigned from the SNP
at the end of March 2017 and unsuccessfully stood for election as an independent candidate.
[12] The pursuer asserted that the third Daily Record article was humiliating and
distressing for her. When she read it it was the worst day of her life. It was much worse
than the previous two articles and made her sick. She considered that the defender’s email
had been sent to other people out of malice. The complaint by the defender had done her
permanent damage. It was beyond her comprehension how someone could lie like that.
[13] Steven Bonnar, the candidate at the by-election, recalled Saturday 20 June 2015 and
the stall at the square in Market Place. While he was at the stall Martin O’Neill suggested
that he should do some canvassing with the pursuer and defender. The three of them
travelled to Lincoln Avenue in the defender’s blue van-type car, which had been parked
behind Corals on Market Street. He got into the back through a sliding door. The defender
was driving and the pursuer was sitting in the front passenger seat. There was absolutely
nothing notable on the journey there, which took four to six minutes. They got out of the car
and he went with the defender to do canvassing for about 45 minutes. As they set out on the
return journey a man approached the car and asked if he was the candidate. He got out of
the car and chatted to him for four or five minutes until he was told that there was a call for
him and he got back into the car. On the return journey there was chat about what the man
had been asking him. The pursuer did not make any racist comment in the course of the
return journey. He would have been outraged had she done so. The defender did not
reprimand her. He first became aware of the allegation made against the pursuer by the
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defender when he read about it in the edition of the Daily Record of 8 February 2016. He
was flabbergasted when he did so and could not believe that the allegation had been made
six months later. He did not know the people involved and was horrified and shocked. He
would not be prepared to protect the pursuer from the consequences of racist comments and
was aware of the consequences of perjury. He was a working class guy who had left school
at 15 with no qualifications. As he put it, “they words were not spoken in the car on the way
there or back”. In cross-examination he stated that he sat in the middle of the back seat of
the car. There were campaign materials, leaflets, billboards and some boxes sellotaped shut
(although he was not certain about the boxes) there, but there was space enough for him. He
rejected the suggestion that the back seat was incapable of holding a passenger. To his
recollection there was no child seat in the back. When he got out of the car to speak to the
man he spoke to him about Birkenside Sports Barn, a community facility which had been
under threat for years.
[14] The defender in evidence spoke generally to the terms of her email. She said that she
and Marie Collins arrived at Market Place at about 9:30 am that morning and she parked
nose-in in a parking place at the Scotmid shop. Because of the items in the back seat which
had been there since the General Election there was absolutely no room for an adult to sit
there. There were materials piled up to the roof of the car. She was asked by Mr O’Neill to
go canvassing in Lincoln Avenue with the pursuer at about 11:45 am. She drove to Lincoln
Avenue with the pursuer in the front passenger seat. On the way there they chatted about
the usefulness of canvassing at that time of day. Steven Bonnar arrived at Lincoln Avenue
in a car driven by his girlfriend. There was no way he could have travelled to Lincoln
Avenue in the back of her car. There was a baby seat strapped in and child locks on the
door. She had not discovered over a period of eleven years how to release the child lock.
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She did not see or hear any engagement by him with a constituent as described by him and
the pursuer. She and the pursuer left Lincoln Avenue after about 20 to 25 minutes as very
few people were at home. The pursuer instigated a conversation about infighting in the
Coatbridge and Bellshill branch. She said to the defender “Do you not think it’s the Pakis
that are causing all the problems? Do you not think it’s time we got rid of them?”. She told
the pursuer that what she said was inappropriate and racist and that, as a councillor, she
should be careful about what she said. It was another race allegation against the pursuer in
the Daily Record article of 3 February 2016 which caused her to send the email containing
her complaint. She felt it was her duty to contact headquarters as the pursuer had not taken
her advice. She marked her email “CONFIDENTIAL” so that its contents would not go
outwith the party. There was no untruth contained within it and she stood by every word in
it. At that time she had no enmity or ill-will towards the pursuer. The pursuer was a
councillor standing for nomination to the list for the Scottish Parliament, as was
Richard Lyle, but she was not a heavyweight political rival to him and the SNP would have
to have lost several seats for the list to kick in. The email would not therefore have made the
slightest difference to the pursuer’s political career. It was ridiculous to suggest that she set
out to ruin the pursuer’s political career.
(ii) Indirect evidence
[15] Indirect evidence about the day came from other witnesses.
[16] Martin O’Neill worked as an emergency call handler for the police and had been a
member of the SNP Uddingston and Bellshill branch since October 2014. He acted as the
local organiser for Steven Bonnar at the North Lanarkshire Council by-election in June 2015.
The first Saturday of the campaign, 20 June, was known as “Steven’s Super Saturday”. A
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stall with bunting, gazebo and flags had been set up. Not all those in attendance were from
the local area, so it was arranged that everyone would meet there. Between 20 to 30 people
turned up at around 09:30. It was the busiest day of the campaign for volunteers. He was
the point of contact for volunteers and he decided who should go where. He instructed Billy
and Jean Marshall to remain at the stall. He sent the pursuer, the defender and Steven
Bonnar to canvass in Lincoln Avenue. The reason he did so was because they were standing
in front of him at the time. He watched them going off together from the stall. He did not
see them get into any vehicle. They returned at about 12:10 pm. He did not recall if they
were separate or together on their return. He spoke directly to Steven Bonnar.
[17] Marie Collins had worked as a nurse for 45 years and had been retired for ten years.
She was involved in campaigning for Steven Bonnar at a street stall at the request of the
defender. Sheena picked her up that day, which she thought was at the end of May, in her
Citreon Bellingro car. (It was in fact a Peugeot Partner MPV.) It had child locks on the back
door and the defender always opened it for her. There were boxes on both back seats and
on the floor which had been there since the General Election. She had never been given a lift
in the back seat after the General Election. The defender drove her to Market Street and
parked in one of the bays in front of Market Square. She assisted in setting up the stall. She
saw the pursuer and defender leave together to canvass. She saw them get into the
defender’s car, but she did not see the defender drive off. The car was still full of boxes and
she did not see Steven Bonnar get into it. Steven Bonnar left in a black or navy car with a
young woman.
[18] William Marshall was a 68 year old retired painter and decorator. He helped in
setting up the stall in Market Place. The pursuer asked the defender if she could take her to
do a bit of canvassing. Just the two of them went and then came back. Steven Bonnar was
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not there. He went away a couple of times for a cigarette behind the shop. The state of
Sheena’s car at that time was such that she could take only one passenger. His wife,
Mrs Jean Marshall, was a 65 year old retired office worker. She had helped pack up the
defender’s car at the General Election. The rear was full of carpet, boxes of leaflets and even
a toilet brush right up to the day of campaigning for Steven Bonnar. She saw the pursuer
and defender come back from canvassing. There was no one with them. Steven Bonnar
could not have been in the defender’s car. It was impossible as the defender could not have
given a lift to more than one person. The defender’s car remained full right through to July.
Any time she saw it it was full. She had first cast her mind back to the events of that day
more than six months previously. She was a supporter of Richard Lyle but did not hold
anything against the pursuer.
(iii) Indirect evidence
[19] There was, in addition, what I would describe as wider background evidence. This
related to two previous incidents mentioned in the Daily Record reports: first, an SNP
branch meeting about the splitting of the ward held in 2012 which the pursuer attended;
and, secondly, the request by the pursuer not to be seated beside Mr Majid at council
meetings. This evidence was led by the defender with a view to showing that the pursuer
had previously exhibited racist tendencies.
[20] So far as the 2012 meeting is concerned, the witness Alan Stubbs, who at the time of
the proof was SNP councillor for Coatbridge North on North Lanarkshire Council as well as
office manager for Fulton McGregor, was present in his capacity as branch secretary. He
made the following note of the meeting once he got home:
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“Racist – Told Imtiaz when he was instructing people to vote him Number 1 that he
vote Gerry Number 2. When told by Imtiaz he couldn’t instruct anyone how to use
their vote she responded ‘looking around this room is testament to the fact that you
can’.
I raised Point of order asking for clarification on the point which was a blatantly
racist comment. Many angry, more shocked, in room. Julie apologised and
withdrew comment.
Party must take this seriously. Candidate racist towards fellow candidate.”
He added that he thought the remark was racist because she had made a gesture towards an
Asian group present when she said “looking around the room”. He spoke to Ian McCann,
the Governance and Compliance Manager, about the matter. He accepted that there had
been infighting within the local party for many years and that two factions existed. It was
not true that the pursuer said that the floor was clearly being directed. In his opinion it was
a blatantly racist remark which she had made. He accepted that he had described the
pursuer to the Press as “a twisted bitch”, but claimed that he had no reason to have
animosity towards her. Anne Neilson was an SNP activist in 2012 and election agent for
Dr Majid and at one point for Gerry Somers. According to her the pursuer said at the
meeting “You just need to look around the room to see which way the vote is going to go.”
There were a lot of Asians in the room. The branch secretary or convener asked her if she
wished to withdraw the remark, which she did. She understood the pursuer to be directing
her comments at the Asians in the room. She did not hear Mr Majid say he was at a
disadvantage because he was Asian and did not recall an allegation that entryism was going
on. Fulton McGregor, the SNP Member of the Scottish Parliament for Coatbridge and
Chryston since 2016, also spoke to the pursuer having made the same or a similar comment
at the 2012 meeting. He accepted that he was part of the faction opposed to the pursuer.
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[21] The pursuer’s account of the 2012 meeting was that it was very crowded and she
took issue with how people were behaving. There were relations of Alan Stubbs and friends
and employees of Imtiaz Majid present. She thought they were there basically to bully
Gerry Somers into accepting Imtiaz’s position. She took issue with Imtiaz for improper
conduct, bullying and intimidation. He was sitting among the new members and telling
them by gesture when to raise their hands. She was very annoyed by what was going on
and commented “The floor is clearly being directed”. Alan Stubbs called a point of order.
She thought he was just annoyed she was pointing out what was happening at the meeting.
She withdrew her comment and apologised when requested to do so as she wanted to close
down the argument and the meeting to go on. She did not say anything intended to be
racist. No complaint had been made or disciplinary action taken against her.
[22] So far as the issue of the pursuer refusing to sit beside Dr Majid at council meetings
is concerned, the substance of the allegation is contained in the Daily Record article of
3 February 2016 set out above. The pursuer’s response to this was that there was no truth
that she refused to sit beside him because he was a Muslim. I have already set out her
evidence on this point at paragraph [10] above. She was not aware of any probe at that time
or of any official source for the Daily Record article. She concluded it had been leaked by
the faction opposed to her and was a continuation of the campaign to smear her, which had
been ratcheted up.
[23] As regards the condition of the interior of the defender’s car on 20 June 2015,
Richard Lyle spoke to the general position following the General Election on 7 May 2015.
He said it was full and still full at the time of Steven Bonnar’s election in July. The defender
was unable to pick up his grandson from nursery over that period. Ann Neilson said that
the car was jam-packed with boxes and a child seat in the rear following the General
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19
Election. Mr and Mrs Marshall also spoke of the items in the car and of the impossibility of
anyone being able to get into the back seat.
Assessment of the evidence
[24] The evidence of the above witnesses was in conflict to a greater or lesser extent.
Guidance on how to deal with such a conflict was given by the Court of Appeal in Wetton (as
stated at para 12:
“There are many situations in which the court is asked to assess the credibility of
witnesses from their oral evidence, that is to say, to weigh up their evidence to see
whether it is reliable. Witness choice is an essential part of the function of a trial
judge and he or she has to decide whose evidence and how much evidence, to
accept. This task is not to be carried out merely by reference to the impression that a
witness made giving evidence in the witness box. It is not solely a matter of body
language or the tone of voice or other factors that might generally be called the
‘demeanour’ of a witness. The judge should consider what other independent
evidence would be available to support the witness. Such evidence would generally
be documentary, but it could be other oral evidence …”
At paragraph 14 her ladyship went on to state that the presence or absence of
contemporaneous documentation was of the very greatest importance in assessing
credibility. In this case there is no contemporaneous documentary evidence about what was
said in the car, nor would I expect there to be any. Nor is there any CCTV footage or the
like, which would have shown how many people got into the defender’s car. I am therefore
totally reliant on the oral evidence of witnesses in reaching a conclusion on credibility and
reliability. I have reached the conclusion that the pursuer did not make the statement
attributed to her for the following reasons.
[25] First, I regard it as implausible and inherently unlikely that the pursuer would have
made the statement attributed to her, and especially to the defender. She did not know the
Page 20 ⇓
20
defender and understood that she was aligned to Richard Lyle and part of an opposing
faction within the local SNP. She was wary of the defender, understood that she had been
discussing her behind her back and had made untruthful allegations against another person.
The alleged statement is said to have been made 12 days after Richard Lyle had blocked her
nomination as a candidate for Coatbridge and Chryston at the Scottish Parliament election.
Counsel for the pursuer submitted that it would have required the pursuer to have taken
complete leave of her senses to have made such a statement to the defender. I agree with
that observation.
[26] Secondly, there is the issue of the delay by the defender from June 2015 to February
2016 in making an official complaint against the pursuer. The principal explanation given
by the defender in evidence for this delay was that she had hoped that the pursuer would
desist from making any further comments of such a nature and that her comment had
perhaps been “a slip of the tongue”. She ultimately suggested that the use of the term
“Pakis” was not necessarily racist despite the fact that the terms of her written complaint
made clear that she was reporting the pursuer for having made a racist comment. Had the
defender genuinely thought at the time of the alleged statement that the pursuer was a racist
within the SNP I would have expected her to take some formal action to report the matter
then. The other, and inconsistent, explanation given by the defender in the body of her
written complaint for the delay was that she feared reprisals from the pursuer and her
supporters. The defender stated in evidence that in June 2015 she had little knowledge of
the ongoing discord within Coatbridge and Chryston SNP and that she did not know that
the pursuer and Phil Boswell were aligned. I do not accept the explanation for the delay
given in her written complaint.
Page 21 ⇓
21
[27] Thirdly, there is the issue of the complainer having copied her written complaint to
various individuals. The reason given on record for this was so that they would be aware
that it was not the North Lanarkshire Liaison Committee which had made the complaint.
The list of recipients consisted mainly or wholly of people who were not supportive of the
pursuer and did not include anyone supportive of her. The reason given by her in evidence
was that she wished to ensure that the complaint was dealt with. I do not accept either of
these reasons. In my judgment the complaint was circulated to these other recipients out of
malice or ill-will on the part of the defender, in order to cause as much damage as possible
to the pursuer.
[28] Fourthly, there was obviously a campaign within the local SNP against the pursuer
in January and February 2016, as demonstrated by the articles in the Daily Record, the
information for which must have been leaked to the newspaper by a party member or
someone on his or her behalf. I regard the complaint made by the defender as part of this
campaign, designed to prevent the pursuer being nominated as a candidate for the Scottish
Parliament elections, and possibly to oust her from the party. The timing of her complaint
is, in my view, highly significant, coming as it did after the Daily Record articles traducing
the pursuer. So also, in my opinion, is the fact that she worked for Richard Lyle MSP.
Although it is not necessary for the pursuer to establish a motive for the defender’s
statement, I am satisfied upon the entire evidence led that the defender was part of a
campaign against the pursuer.
[29] Fifthly, the defender has previously been convicted of a charge of theft. This in itself
does not establish that she lied, but it does show that she is not averse to acting dishonestly.
[30] Sixthly, I do not accept that the pursuer has generally racist views. She has taught
music to pupils of different nationalities. The comment which she made at the meeting in
Page 22 ⇓
22
March 2012 directed against Dr Majid and his supporters, whatever its exact terms, was
solely political in nature and critical of what she regarded as entryism on the part of his
supporters. Her refusal to sit beside Dr Majid in the council chamber was again political
and not racist in nature. I therefore reject the submission of counsel for the defender that
what happened at the 2012 meeting is indicative of a propensity on the part of the pursuer to
speak in a way that is heedless of racial sensitivities.
[31] Seventhly, I believe the evidence of the pursuer and Steven Bonnar to the effect that
the pursuer never made the alleged statement and reject the evidence of the defender that
she did make it. My impression of the pursuer as a witness was a generally favourable one.
Even if I had had any doubts about her credibility and reliability (which I did not) they
would have been dissipated by the evidence of Steven Bonnar. He was, to my mind, an
entirely honest and reliable witness. He had no axe to grind and no reason whatsoever to
lie. He was a guileless greenhorn in the world of local politics, unused to its scheming
machinations. Unlike other witnesses, he had a good reason to remember the events of
20 June 2015 in detail as he was the candidate and then embarking on his first day of
campaigning. He was clear that he was in the defender’s car and that the alleged statement
was not made by the pursuer. He stated that he abhorred racism: that being so, I would
have expected him to take some action in relation to the pursuer had she made the statement
attributed to her. I refuse to accept that he committed perjury in order to assist the pursuer.
On the other hand, I did not accept the evidence of the defender that the pursuer made the
statement attributed to her. I found her to be an unforthcoming witness and formed a
generally poor impression of her. Faced with a direct conflict between her evidence and that
of the pursuer and Steven Bonnar, I have no hesitation in accepting the evidence of the latter
two. On the question of the items allegedly in the defender’s car at the material time which
Page 23 ⇓
23
would have prevented Steven Bonnar getting into the car, I take the view that while there
might well have been some items in the car, they did not prevent Steven Bonnar getting into
the back of the car. Moreover, I find it extremely strange that there should be the large
number of items in the car which the defender claimed there were several weeks after the
General Election, particularly as she was in the habit of ferrying around Mr Lyle’s
grandchildren. The issue raised by the defender about the child lock on the back door of her
car and where her car was parked before she drove to and then back from Lincoln Avenue
probably cannot be definitively resolved on the basis of the conflicting accounts, but I am
satisfied that Steven Bonnar was in her car on the journeys to and from Lincoln Avenue. I
regard his evidence as the touchstone of the truth and reject the evidence of any witness in
conflict with it.
[32] I am therefore satisfied that the statement made by the defender attributing the
alleged statement to the pursuer was false. Moreover, as stated above, I am satisfied that it
was activated by malice and ill-will as part of a campaign directed against the pursuer by
the opposing faction within the local SNP. On the view I have taken no issue of veritas, fair
comment or qualified privilege arises.
Damages
[33] The false allegation of racism against the pursuer was extremely serious in nature
and caused her great distress. The defender must be held liable for direct publication to the
recipients of the complaint. Counsel for the pursuer submitted that the defender must also
be held liable for all further publications of the allegation as these would not have occurred
but for her complaint. She was actually aware, or at least a reasonable person in her position
should have been aware, that there was a significant risk that what she said would be
Page 24 ⇓
24
repeated in whole or in part in the media and that would increase the damage caused to her,
particularly in light of the previous articles concerning the pursuer having been leaked to
the Daily Record. The conclusion that there was actual awareness was consistent with the
proposition that the defender was actually engaged in seeking to damage the pursuer. As a
result, the defender was liable for the damage caused by the totality of the publication of the
Reference was made to Baigent v BBC 2001 SC 281 at paragraphs 22 and 26. The court
should also take into account that the defender had pleaded and failed in a defence of
veritas, resulting in additional publication of the defamatory statements and distress to the
pursuer: Munro v Brown 2011 SLT 947 at paragraphs 47, 50 and 51. Standing the seriousness
of the allegations made by the defender, her conduct of the case and the extent of
publication, damages should be assessed at £100,000. Alternatively, if the court took the
view that the defender was liable only for a more restricted publication, an award of £40,000
would be appropriate. On any view there was at least a significant risk that the content of
the complaint would be discussed within the party and locality of the pursuer, affecting her
reputation and her career as a politician.
[34] It was submitted on behalf of the defender that the award of damages should take
into account several factors. First, in making her complaint, which was headed
“CONFIDENTIAL”, the defender was making a formal report to an SNP official. The
recipients of her email, all of whom were members of the SNP and subject to its disciplinary
processes, should have been expected not to disseminate its contents as a leak to the Press
would be contrary to the code of conduct. Secondly, the extent of dissemination by the
defender was restricted to the thirteen people listed as recipients of the email. That the
contents of her complaint ended up being reported in the Press was not of the defender’s
Page 25 ⇓
25
making. It was reasonable for her to assume that it would not be published more widely.
Thirdly, when the Press received the story and asked the defender for comment she replied
by stating that she could not provide any comment as the issue was by then with the SNP.
Fourthly, by the time of the complaint and its subsequent reporting the pursuer was already
the subject of the articles in the Daily Record dated 22 January and 3 February 2016 and had
also, at the 2012 meeting, spoken in a way that was heedless of racial sensitivity and thought
to be racist by several persons present. Fifthly, the pursuer had demonstrated herself, by her
evidence relating to the 2012 meeting, to be untruthful and (again) heedless of racial
sensitivities. She had on any view made unwarranted and heedless accusations of the most
serious nature against a number of individuals so that her reputation would be substantially
diminished in any regard.
[35] The submission for the defender continued by asserting that an award of damages
for defamation under Scots Law was compensatory only: unlike the law of England, there
should be no question of punitive damages. If the pursuer had no reputation worthy of
protection any award of damages should be nominal. So far as responsibility for wider
publication was concerned, the necessary foresight of wider publication was absent. The
allegation, albeit serious, had been made to the named recipients only and an award of more
than £5,000 would not be warranted. If the defender were to be held responsible for the
wider circulation an award in the region of £30,000 would be appropriate.
[36] I deal first with the question whether the defender is to be held liable for further
publication of the defamation beyond the publication which she made to the named
recipients of her email. In McManus v Beckham the claimants, who sold autographed
memorabilia, claimed damages against the defendant, a well- known celebrity, for an
alleged slander of their business. They alleged that he had spoken to several customers in
Page 26 ⇓
26
their shop advising them not to buy autographs from their shop since they were all fakes.
The particulars of claim alleged that the defendant’s publication of the words complained of
foreseeably led to extensive media coverage, repetition and republication in various
newspaper and internet articles, thereby causing substantial loss to the business for which
the defendant was liable. The particulars also stated that the claimants further relied, in
support of their damages claim, on the fact that the defendant courted publicity in her
professional and private life, that, as she well knew or could or did foresee, her remarks
were likely to come to the attention of and be widely reported in the tabloid press and that,
alternatively, it was the natural and probable consequence of her publication of the words
complained of that they would be reported in the media and/or repeated in the specialist
celebrity autograph market. The defendant applied to strike out those particulars on the
ground that she could not, as a matter of law, be liable for any damage flowing from the
independent and unauthorised republication of the alleged slander. The judge at first
instance granted the application, holding that the newspaper publications must have
resulted from the independent act of a third party for whose acts the defendant was not in
law responsible. The Court of Appeal (Waller, Clarke and Laws LJJ), taking as its starting
point the statement in Gatley on Libel and Slander, 9th ed (1998), pp 154-155, para 6.30,
reversed the decision of the judge at first instance. Waller LJ stated at page 2998F-H,
para 34:
“What the law is striving to achieve in this area is a just and reasonable result by
reference to a reasonable person in the position of the defendant. If a defendant is
actually aware (1) that what she says or does is likely to be reported, and (2) that if
she slanders someone that slander is likely to be repeated in whole or in part, there is
no injustice in her being held responsible for the damage that the slander causes via
that publication. I would suggest further that if a jury were to conclude that a
reasonable person in the position of the defendant should have appreciated that
there was a significant risk that what she said would be repeated in whole or in part
Page 27 ⇓
27
in the press and that that would increase the damage caused by the slander, it is not
unjust that the defendant should be liable for it.”
Laws LJ stated at pp 3000H- 3001C, paras 42 and 43:
“42 The law needs to be simplified. The root question is whether D, who has
slandered C, should justly be held responsible for damage which has been
occasioned, or directly occasioned, by a further publication by X. I think it is plain
that there are cases where that will be entirely just. The observation of Bingham J in
Slipper v British Broadcasting Corpn [1991] 1QB 283, 300 that ‘Defamatory statements
are objectionable not least because of their propensity to percolate through
underground channels and contaminate hidden springs’ states an ancient and
persistent truth, long ago vividly described in Vergil’s account of Aeneas and Dido,
Queen of Carthage (Aeneid bk4, II 173-188).
43 It will not however in my judgment be enough to show that D’s slander is a cause
of X’s further publication: for such a cause might exist although D could have no
reason to know of it; and then to hold D responsible would not be just. This is why
the old formula ‘natural and probable cause’ is inapt even as a figurative description
of the relationship that needs to be shown between D’s slander and the further
publication if D is to be held liable for the latter. It must rather be demonstrated that
D foresaw that the further publication would probably take place, or that D (or a
reasonable person in D’s position) should have so foreseen and that in consequence
increased damage to C would ensue.”
Assuming for present purposes (as I was not referred to any Scottish case on the point) that
the above dicta correctly state the law of Scotland, I have reached the conclusion that the
defender in the present case cannot be held responsible for any publication of the libel
beyond the email which she sent. Notwithstanding the previous publicity relating to the
pursuer, that email was marked “CONFIDENTIAL” and circulated to a restricted number of
named persons within the SNP. I am of the view that it cannot be said that the defender
foresaw or should have foreseen that further publication of the libel would probably take
place. In these circumstances it would not, in my opinion, be just for her to be held
responsible for further publication.
[37] Nevertheless, the libel in question, which made an unfounded allegation of racism,
was an outrageous one which has had a serious effect on the pursuer’s personal reputation
Page 28 ⇓
28
and effectively ended her political career. I consider the figure of £5,000 suggested by
counsel for the defender as damages to be wholly unrealistic and inadequate. I accept the
submission of counsel for the pursuer that in these circumstances an award of £40,000 in
name of damages would be appropriate.
Decision
[38] I shall sustain the first, second, third, and fourth pleas-in-law and repel the fifth plea-
in-law for the pursuer, repel the first to sixth pleas-in-law for the defender, grant decree for
payment by the defender to the pursuer of the sum of £40,000 with interest thereon at the
rate of 4% per annum from the date of citation until the date of decree and thereafter at the
rate of 8% per annum until payment.
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