A remarkable judgement has been issued today in the case of Frances Curran, former socialist MSP, whose public spat with Tommy Sheridan has led to a lower profile, yet no less significant, defamation case. Former solicitor Paul McConville brings this exclusive analysis.

The Inner House today has delivered a judgment which performs three tasks, two of which might seem surprising. The case is Frances Curran v Daily Record and Sunday Mail and the judgment is here -

Apart from rejecting Ms Curran’s appeal against dismissal of her claim, for reasons noted below, the court seems to have complimented Tommy Sheridan, which might seem unusual as regards a convicted perjurer, and also gave a reminder that the press has a vital role to play in political discussions, including, as Lady Paton’s judgment put it, when quoting a European Court decision “In the context of a public debate the role of the press as a public watchdog allows journalists to have recourse to a certain degree of exaggeration, provocation or harshness.”

Especially recently with the one way tide of bad press (so to speak) for the press, it is good for society, and for the media, to be reminded that they can be robust, provocative, harsh and can exaggerate, in playing the watchdog role.

Perhaps a newspaper might put that quote on its masthead!

Frances Curran was one of the Scottish Socialist Party (SSP) MSP’s elected to Holyrood. However, the SSP imploded in the aftermath of the News of the World’s allegations of “swinging” against Mr Sheridan, and his successful defamation claim against News Group Newspapers Limited (NGNL). Ms Curran, along with all of the other SSP MSP’s lost her seat.

Ms Curran did not give evidence for NGNL in the original defamation trial. Neither side called her.

In the aftermath of the Pyrrhic victory for Mr Sheridan, three prominent SSP MSP’s, Ms Curran, Rosie Kane and Carolyn Leckie, issued a statement indicating their dissatisfaction at the behaviour of Mr Sheridan and of the outcome of the defamation case (Mr Sheridan having been awarded £200,000 damages by the jury).

On 5th August 2006 Ms Curran was quoted in the Daily Mail stating that Mr Sheridan had lied in the trial.

Tommy Sheridan replied in the pages of the Daily Record over the next few days. He accused Ms Curran, amongst others, of being a “scab” - the ultimate insult to some politicians. He made it clear that he could see no way of working with the three specific members mentioned above for their “betrayal” of what he and the SSP stood for.

In November 2008, Ms Curran raised an action for defamation against the Record (but not against Mr Sheridan). She claimed that she had been defamed by the articles in the Record. She alleged that “the innuendo contained in the article was that, notwithstanding her professed commitment to socialism and trade unionism, the pursuer had been happy to align herself with, and to assist, the anti-socialist NGNL, in furtherance of a plot to destroy Mr Sheridan's political career, and that in consequence she was a "scab" and a "political scab", failing to act in accordance with her publicly professed principles in a way which was dishonourable, hypocritical and lacking in integrity, all of which was untrue. In particular, the article appeared to suggest that she had given evidence as a witness for NGNL against Mr Sheridan, when she had not.”

The paper defended the action on the basis that the articles were not defamatory, but even if they were, which was denied, they were covered by “qualified privilege” and as not motivated by malice, there was no liability.

The action was dismissed by Temporary Judge Morag Wise at first instance, who upheld the defence propositions.

Ms Curran appealed and advising took place today. The court, comprising Lady Paton and Lords Hardie and Kingarth, has rejected the appeal and upheld the initial decision.

The court stated that the “rough and tumble” of political discourse was an area where the court, traditionally, had been reluctant to interfere as regards defamation. The court reviewed a number of cases, including those from the European Court of Human Rights, and agreed that public figures, whilst not fair game for the press, ought to be prepared for rigorous analysis and discussion in the political field.

The judges quoted the European Court in Dlugolecki v Poland, 24 May 2009, Application no 23806/03 saying:-

“The limits of critical comment are wider if a public figure is involved, as he inevitably and knowingly exposes himself to public scrutiny and therefore must display a particularly high degree of tolerance…. In the context of a public debate the role of the press as a public watchdog allows journalists to have recourse to a certain degree of exaggeration, provocation or harshness.”

The court determined:-

“In particular, we are not persuaded that the article would lower the pursuer in the esteem of right-thinking members of the public. The public were well aware of the nature of Mr Sheridan's dispute with the NGNL. As was noted by Lord Macphail in Macleod v Newsquest (Sunday Herald) Ltd 2007 SCLR 555 (quoting Neill LJ in Gillick v BBC [1996] EMLR 267):

"... (2) The hypothetical reasonable reader (or viewer) is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking. But he must be treated as a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available ...".

"In our view, the readers of the article would appreciate that they were witnessing a political skirmish, with warring factions within the SSP and diametrically opposed views about how the party and its members should conduct themselves, including a characteristically forthright public berating by Mr Sheridan of those who, in his view, had failed to give him the unquestioning public and political support he needed in whatever way he demanded and at whatever personal cost to the individual.”

As far as the question of qualified privilege went, the court stated as follows:-

“In the present case, Mr Sheridan did not respond by calling the pursuer a liar. He focused instead upon the main themes underlying his whole campaign, namely socialism against anti-socialist forces epitomised by NGNL; his hope and belief that he would be wholly supported by fellow socialists, and in particular by members of the SSP; the fact that the pursuer had (so far as he was concerned) demonstrated political disloyalty both to him and to his socialist cause - which in his eyes qualified her as a "scab"; and his resulting anger and disappointment, with the caveat that he and the pursuer might find it difficult to work together in the SSP in the future. In our view, that retort, in the circumstances, came within the parameters of "fair retort". Thus the defenders were entitled to qualified privilege on the occasion that they reported that retort.”

Bearing in mind that Mr Sheridan remains a convicted perjurer, the words of the court seem almost complimentary to him! The suggestion of the court is that, rather than resort to personal attacks, as Ms Curran had done, he engaged in a political discourse detailing what he perceived to be the faults of the parties.

Finally, Ms Curran had added that the words used were motivated by malice on the part of Mr Sheridan, as he knew that the foundation of his “attacks” on Ms Curran and others was unsound. By extension, if Mr Sheridan’s words were malicious, then the malice should be attributed to the Daily Record also.

The court rejected this argument too, saying:-

“Quite apart from the lack of precedent, we consider that there is no support in principle for the pursuer's proposition. Malice on the part of an individual is not necessarily easy to detect. Accordingly, to deprive a newspaper or other publishing medium of the defence of qualified privilege because the individual whose views were reported is subsequently proved to have been motivated by malice would, in our view, place too heavy a burden upon the publisher.”

A hearing at a later date will determine liability for costs. The financial consequences for her may be grave. It would be ironic, to say the least, to see another former SSP MSP brought down by their voluntary decision to pursue a case through the courts. Neither Mr Sheridan nor Ms Curran were forced to raise actions – but they both did and have had, or will have, to pay the consequences of their decisions.