Being labelled a murderer when you are an innocent man is about as extreme as defamation gets, so you would think that pursuing a successful action would be straightforward. However as  Cameron Fyfe explains, the road to recompense is barred by new hurdles too high to overcome for most. Raising a successful action becomes almost impossible, no matter the gravity or extent of the slur.

---

At the beginning of Woody Allen’s film “Love and Death” there is a scene in which the hero is in a prison cell awaiting execution. “I am to be shot at 5am” he says. “It was to be 4am but I’ve got a smart lawyer”.I was reminded of this scene recently in my attempts to obtain Legal Aid for a client called Danny Wilson to pursue an action for defamation. Danny had attended Shrewsbury Hospital for fertility treatment. As is normal the hospital asked Edinburgh City Council, where Danny had lived, for a copy of his Social Work records so they could check his background.

On one of his visits to the hospital he received an ice cold reception from the consultant and his staff. When he asked what was wrong the consultant explained that he had read through his Social Work records and it revealed that he had served a life sentence for murder. It took the Social Work department a year to finally advise the hospital that this information was in fact completely erroneous and that Danny had never been in prison in his life.

The whole episode caused him much distress and trauma and he instructed me to apply for Legal Aid to raise an action for defamation against Edinburgh City Council in the Court of Session. I advised him that he had had a lucky break (for a change) in that the law had recently been amended to allow a pursuer to apply for Legal Aid to raise such an action. The law in question was the Legal Aid Profession and Legal Aid (Scotland) Act 2007. Section 14(1C) permits the granting of Legal Aid in cases involving defamation and verbal injury. All the usual tests require to be satisfied including the establishment of probable cause, reasonableness and financial eligibility. Danny’s case looked strong. What could be more defamatory than to be labelled as a murderer?

However an additional requirement was thrown in, namely “such criteria as may be set out by the Scottish Ministers in directions given to the Board are met.” As a result of these directions a pursuer now has to prove: a) there is a significant wider public interest in the resolution of the case or the case is of overwhelming importance to the person, and: b) there is something exceptional about the person or the case such that without Legal Aid it would be practically impossible for the person to bring or defend the proceedings and this would lead to obvious unfairness.

It gets worse. The direction then goes on to say that the Board “must be satisfied that the degree of exceptionality is the same as, or is approximately the same as, in the facts found in the case of Steele and Morris v United Kingdom,” the infamous McLibel case which involved 40,000 pages of documentary evidence, a wide range of experts and many court hearings. In short therefore the Legal Aid Board have been directed to grant Legal Aid for a Pursuer to proceed with a defamation action only if it is similar to the McLibel case, which surely comes along once every hundred years or so. I advised Danny therefore that we might have difficulty obtaining Legal Aid and I was right. Legal Aid was refused.

I lodged a review and that was refused. I then applied for Legal Aid to seek judicial review of the Legal Aid Board’s decision. That was refused. Danny then asked – where do we go from here? As a last throw of the dice I have now applied for Legal Aid to seek judicial review on the basis that the current law is in breach of the Human Rights Act. Article 6 of the European Convention on Human Rights demands that every individual is entitled to a fair hearing. How could Danny have a fair hearing if, unrepresented and without any knowledge or experience of the Law or legal procedures he was to take on Edinburgh City Council with their top drawer solicitors and QC’s? If Danny is granted Legal Aid and his judicial review is successful it would open the door to many other claimants in similar circumstances.

Why is the Scottish Government so keen to restrict the right of poor people to proceed with actions for defamation? The applicant would still have to prove that he had probable cause and that it was reasonable for Legal Aid to be granted. Why should an action for defamation be any different from say an action for damages following upon a road accident? Prior to the 2007 Act, you could not apply for Legal Aid at all to raise an action for defamation. Now you can apply but it will be refused. What would Woody Allen have to say about that?