Thursday, 22 December 2016

JUDICIAL COMPLAINT AGAINST LORD BANNATYNE IN SCOTTISH ENTERPRISE CHIEF EXECUTIVE LENA WILSON DEFAMATION CASE


Mr Eddie Cairns

72 Hillhouse Street

GLASGOW G21 4HP

Tel 07501 346 490

20 December 2016

 

 

Judicial Office for Scotland

Strategy & Governance

Court of Session

1A Parliament Square

EDINBURGH EH1 1RQ

 

 

Dear Sir or Madam,

JUDICIAL CONDUCT COMPLAINT – LORD BANNATYNE

I want to raise a formal complaint about unethical conduct by Lord Bannatyne in respect of his outright rejection of my proposed writ against Ms Lena Wilson.

Lord Bannatyne appears to have failed to act in accordance with the principles of impartiality, integrity, propriety and competence and diligence.

The Scottish Judiciary has an honourable tradition in the attainment of high standards of judicial conduct. Maintaining such standards is essential if the community is to have confidence in its judiciary.

 

In the section of the published report on Judicial Ethics that addresses the principle of impartiality the following statements are made,reproduced here in italics for convenience:

 

‘Where there exists some reason, apart from pecuniary interest,

why a judge should not handle a case on its objective merits, or

may reasonably appear to be unable to do so, he or she should

recuse himself or herself. Thus, for example, a meaningful

acquaintance with a litigant, or a person known to be a significant

witness in the case might constitute such an objection. Other

examples of such reasons are set out in the judgment of the court in

Locabail (U.K.) Ltd v Bayfield Properties Ltd (C.A.) [2000] Q.B. 451 at

Statement Of Principles of Judicial Ethics for the Scottish Judiciary

April 2010 23 page 480. Further, recusal would be necessary where a well informed

and fair-minded observer would consider that there was

a real possibility of bias: Porter v Magill [2002] 2 A.C. 357.

Consideration of the operation of that principle is to be found in

Helow v Secretary of State for the Home Department 2008 SC (HL) 1.’

 

In the section that addresses the principle of integrity the report states ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.

 

In the section that addresses the principle of propriety the report statesthe judge should avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality.’

 

In the section that addresses the principle of competence and diligence the report states:

 

Since the public have certain legitimate expectations as to the

decision making of the court, it is important that these should be

met. Written decisions should be formulated in such a way as to

render them comprehensible to the public, so far as that is

consistent with the handling of what may be very complex legal

and factual issues. Judges should carefully consider whether they

have a sound basis for making critical observations in their

judgments.....’

 

As detailed below, Lord Bannatyne appears to have violated all these principles.

 

Lord Bannatyne failed to avoid an appearance of bias as detailed further on below. Actual bias does not have to be alleged or proven to render a judge insufficiently impartial.

Lord Bannatyne has failed to address adequately the arguments and evidence presented in the proposed writ and has failed to provide convincing reasons for his conduct that would enable the public to comprehend it.

The reasons given for Lord Bannatyne’s conduct are reproduced below in bold type and my comments follow in normal type:

 

‘As regards a prima facie case, in my view, first there is nothing averred which is defamatory.’

Lord Bannatyne’s view is completely unsupported and unexplained. In particular it completely disregards the test for whether or not words are defamatory as established in Scots law:

’Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?’

The words averred in the proposed writ to be defamatory are reproduced below in italics for convenience:

‘The subject matter of Mr Cairns’ complaint dates back to 1993 and relates to an accounting matter raised by Mr Cairns regarding when a credit should have been shown in the management accounts of Scottish Enterprise Ayrshire (SE Ayrshire) formerly named Enterprise Ayrshire.’

‘The matter was immediately investigated at the time by Scottish Enterprise, its principal funder, and the accounting requirements for Local Enterprise Companies were clarified. No evidence of fraud or wrongdoing was found.’

‘Following unauthorised disclosures relating to the above matter to the press and various other third parties, Mr Cairns’ position was untenable and his contract with Enterprise Ayrshire was terminated in August 1993.’

‘Mr Cairns continued to revisit this matter with Scottish Enterprise ...... and in 2011 I had to reluctantly inform him that unless he had new evidence, Scottish Enterprise would not continue to correspond with him on this matter as it had been fully investigated both internally (within SE Ayrshire and Scottish Enterprise) and externally and that Scottish Enterprise’s complaints process has now been completely exhausted.’  

The proposed writ explained how these words would tend to lower me pursuer in the estimation of right-thinking members of society generally in the following terms, reproduced here in italics for convenience:

The defender’s words falsely portrayed the pursuer as incompetent, a false accuser, a time waster and someone who had breached professional standards.

Clearly, the alleged defamatory statements include the stated consequences of the alleged conduct of the pursuer for his employment, which were that his position became untenable and his contract terminated.

Stating falsely that the pursuer had acted in a way that caused his dismissal would undoubtedly tend to lower the pursuer in the estimation of right-thinking members of society generally.

The pursuer is a qualified accountant therefore the defender’s defamatory statements in the context of alleged financial irregularities were particularly insulting and damaging in the circumstances.

The defender’s defamatory statements about the pursuer resulted in Ms Patricia Ferguson MSP deciding to take no further action on behalf of the pursuer, which she notified to the pursuer in her letter dated 12 June 2012.

The defender’s words falsely indicated that the pursuer had raised concerns about a technical accounting matter when there was in fact nothing wrong and had breached confidentiality.

In fact the pursuer had been concerned about being instructed by his supervisors to overlook in his reconciliation work the omission from the balance sheet of a cash grant from the European Regional Development Fund of £187,069 which had simultaneously been deposited in a high interest bank account.

The defender’s inappropriate description of the matter can reasonably be suspected as designed to cover up its true nature, which in fact gave rise to a reasonable suspicion of the operation of a criminal conspiracy to commit fraud, not a minor accounting technicality at all.  

The pursuer’s email to his supervisors in Enterprise Ayrshire, Mr Gary Tracey and Ms Janie Maxwell, dated 17 August 1993 had recorded his objection to their instruction for the pursuer to omit from the balance sheet funds received from the EC.

The correction to the balance sheet, made within less than a day of the pursuer’s email, was a significant increase in the bank balance and a corresponding decrease in the funding required from taxpayers.

Consequently, there was indeed evidence of wrongdoing.

Before this correction the accounts had been wrong by £187,069.

In fact the pursuer did not make any unauthorised disclosures relating to the above matter to the press and various other third parties before his contract was terminated.

In fact this matter had not been fully investigated both internally (within SE Ayrshire and Scottish Enterprise) and externally and Scottish Enterprise’s complaints process had not been completely exhausted.  

Indicating falsely that the pursuer was continuing to revisit this matter with Scottish Enterprise although it had been fully investigated both internally (within SE Ayrshire and Scottish Enterprise) and externally and although Scottish Enterprise’s complaints process had been completely exhausted would undoubtedly tend to lower the pursuer in the estimation of right-thinking members of society generally.

In fact on 2 November 2016 this matter was referred by the Police Investigations and Review Commissioner’s Head of Review & Policy, Mr or Ms Iliya Zharov, to the Crown Office and Procurator Fiscal Service. Police Scotland are currently investigating alleged previous investigatory failures in this case.

 

There is no doubt that the defender’s words about me would tend to lower me in the estimation of right-thinking members of society generally therefore Lord Bannatyne’s view appears to be wrong.

The proposed writ provided details of Scots law on this point in the following terms:

‘According to Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), at page 1:’

‘’The law of Scotland has always placed high regard on a person’s right to reputation. Stair, listing the important interests that are protected by the law, puts ‘fame, reputation, and honour’ third to ‘life, members and health’ and ‘liberty’.’

‘’(Institutions of the Law of Scotland, 1,4,4)’’

‘‘If character, honour and reputation is unjustly attacked the law provides remedies through the actions for defamation, verbal injury, and even negligence.’’

‘On page 8 the following is stated:’

‘’Defamation is, literally, the taking away of one’s fame and to be actionable the pursuer must establish that the statement or communication is injurious in the sense of being capable of harming the pursuer’s public character, honour or reputation.’’

‘’(Green’s Encyclopaedia of Scots Law, vol 5, 1102)’’

‘And on page 9 the following is stated:’

’’Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?’’

‘’(Sim v Stretch [1936] 2 All ER 1237 at 1240. This test has been accepted as representing the law of Scotland in Steele v Scottish Daily Record and Sunday Mail 1970 SLT 53 and in Thomson v News Group Newspapers 1992 GWD 14-925.)’’

‘’The significance of this test cannot be overstated.’’

 

‘The complained of letter does no more than set out the history of the applicant’s complaint in respect of Scottish Enterprise.’

Lord Bannatyne has thereby unfairly accepted as true all the defender’s words about me without proof and regardless of my averments that the defender’s words were false.

This further reveals Lord Bannatyne’s personal conduct to be unethical and indeed unlawful.

The proposed writ correctly stated that defamatory statements are assumed to be false and the burden of proof is on the defender.

 

‘Moreover, the said letter was written in response to a letter from the applicant’s MP. That letter of enquiry having been instigated by the applicant. In those circumstances and having regard to the content of the complained of letter it is in any event clearly covered by qualified privilege.’

On the contrary, as correctly averred in the proposed writ, reproduced here in italics for convenience:

The defender either knew that the words communicated about the pursuer were false, or communicated the damaging statements about the pursuer recklessly not caring whether or not the damaging statements were false, therefore the defender acted maliciously.

By communicating defamatory statements about the pursuer either knowing that they were false or recklessly not caring whether or not the statements were false, the defender acted without the defence of qualified privilege.

Lord Bannatyne has thereby displayed ignorance of Scots law on the point.

Alternatively, Lord Bannatyne has deliberately flouted Scots law on the point.

 

‘Lastly, there are no averments that the applicant has sustained any loss.’

Again, Lord Bannatyne has displayed a woeful disregard for Scots law on the point.

There is no requirement to claim for losses in a defamation action.

The proposed writ quite validly claimed reparation for insult and hurt feelings in the following terms, reproduced here in italics for convenience:

The pursuer is entitled to reparation from the defender for solatium in respect of insult and hurt feelings.

Heads of damage and amounts claimed are solatium £50,000 and economic losses £0.

 

‘Further I believe the litigation is vexatious having regard to the whole background of applications since August 2016 when taken together with the continued reference to a conspiracy for which there is no averred foundation.’

I submit that Lord Bannatyne has no lawful basis for asserting that the proposed litigation is vexatious having regard to the whole background of applications since August 2016 when taken together with the continued reference to a conspiracy for which there is no averred foundation.

In any event Lord Bannatyne’s assertion that there was no averred foundation for a continued reference to a conspiracy is false. The proposed writ contained the following averments on this point, reproduced here in italics for convenience:

The defender’s inappropriate description of the matter can reasonably be suspected as designed to cover up its true nature, which in fact gave rise to a reasonable suspicion of the operation of a criminal conspiracy to commit fraud, not a minor accounting technicality at all.  

In fact on 2 November 2016 this matter was referred by the Police Investigations and Review Commissioner’s Head of Review & Policy, Mr or Ms Iliya Zharov, to the Crown Office and Procurator Fiscal Service. Police Scotland are currently investigating alleged previous investigatory failures in this case.

 

In the light of the evidence presented to him that there is indeed a criminal investigation currently in progress in this case Lord Bannatyne’s assertion about the continued reference to a conspiracy for which there is supposedly no averred foundation in fact has no reasonable basis.

 

Summary

In the light of the averred multitude of disparaging statements by the defender attacking my professional competence and integrity in the context of my objection to financial irregularities in a public authority Lord Bannatyne’s view that these statements were not defamatory appears to be incorrect prima facie.

If Lord Bannatyne has rejected my proposed writ for a more obscure or more technical reason than what appears to be the position at first sight then that would not be in accordance with the terms of Section 1 of the Vexatious Actions (Scotland) Act 1898.

Therefore Lord Bannatyne’s conduct appears to be irrational and overtly biased against me. Pertinent explanations from Lord Bannatyne in support of his conduct that the defender’s statements about me were not defamatory would seem to be required in order for justice to be seen to be done, because the defender’s statements about me appear to be undoubtedly defamatory prima facie. This is unsatisfactory for an open judicial process.

The text of Lord Bannatyne’s interlocutor is reproduced in its entirety below in bold type and my comments follow in normal type:

‘The Lord Ordinary, having considered the proposed Initial Writ and not being satisfied that the proceedings are not vexatious and that there is a prima facie ground for such proceedings, refuses leave to Mr Edward Cairns, 72 Hillhouse Street, Glasgow, G21 4HP to institute the proceedings in terms of Section 1 of the Vexatious Actions (Scotland) Act 1898.’

Lord Bannatyne has addressed none of the important adverse consequences for me that were averred in the proposed writ. Those adverse consequences support my averments that the defender’s words would tend to lower me in the estimation of right-thinking members of society in general.

In the absence of convincing explanations Lord Bannatyne’s conduct appears to be perverse. Such conduct would tend to bring the court into disrepute.

Lord Bannatyne seems to have unfairly and unlawfully applied a more stringent test to this proposed action than what was legally required by the vexatious actions order. He appears not to have considered the matter on a prima facie basis at all but rather to have applied standards more appropriate for a later stage in procedure, for example a debate or a proof hearing.

In any event Lord Bannatyne has not stated which test he did apply and in what respects every averred defamatory statement failed to meet the requirements of that test.

Lord Bannatyne’s failures render his personal conduct fundamentally unlawful and in breach of ethical standards.

Contrary to Lord Bannatyne’s defectively reasoned conduct there were indeed prima facie grounds for the proposed proceedings.

There is no indication that Lord Bannatyne applied any test. Even if he did he has not stated why every averred defamatory statement failed the test.

Lord Bannatyne’s approach appears to be fundamentally unlawful and overtly biased against me.Therefore a reasonable suspicion of impropriety could arise in the mind of an independent observer.

In particular, Lord Bannatyne’s lack of a reasoned judgment does not respect my fundamental rights under the European Convention on Human Rights, Article 6, as established in the Human Rights Act 1998.

As stated above, the judge should avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality’ and ‘Judges should carefully consider whether they have a sound basis for making critical observations in their judgments.....’

 

Such apparently improper conduct violates Judicial Ethics and would tend to undermine public confidence in the administration of justice.

Lord Bannatyne has provided no sound basis for making the critical observations in his interlocutor in respect of not being satisfied that the proceedings were not vexatious and that prima facie there was no ground for the proposed proceedings.

Consequently, a reasonable suspicion could arise in the mind of an independent observer that Lord Bannatyne was determined to exclude me from the court by whatever means regardless of the valid grounds for the proposed proceedings.

Most importantly, his assertion that the statements are not defamatory would appear to any independent observer of average intelligence to be simply wrong and to have failed to have any regard to my right to reputation under Scots law.

All these failures were also incompatible with the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.

Section 6 of the Human Rights Act 1998 provides, to the extent relevant:

‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

‘(6) ’An act’ includes a failure to act....’

Article 6 of the European Convention on Human Rights provides, to the extent relevant:

‘1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 323:

‘5.80  In general, the European Convention on Human Rights, Article 6 obliges courts to give reasons for their judgment. (Hadjianastassiou v Greece (1992) A 252-A, para 33) The giving of reasons is generally implicit in the concept of a fair trial since reasons inform the parties of the basis of the decision and enable them to exercise any right of appeal available to them, and also enable the public to understand the rationale for judicial decisions.......’

‘The right to a reasoned judgment imposes on domestic courts a duty, in principle, to examine and address the arguments and evidence put forward by the parties to a case. (Quadrelli v Italy (11 January 2000), para 34), (Ruiz Torija v Spain (1994) A 303-A, para 19) ..........’

‘The reasons given must be valid in law. (De Moor v Belgium (1994) A 292-A, paras 54-55)’  

According to Reed and Murdoch, A Guide to Human Rights Law in Scotland, Butterworths, (2001), at page 106:

‘The fact that the Convention imposes positive as well as negative obligations is reflected in the terms of the Human Rights Act 1998. (Section 6(6))’

At page 253 the following points are relevant:

Fair administration of justice’

‘Procedural propriety and the prohibition of the retroactive imposition of criminal liability lie at the heart of any legal system grounded in the rule of law. The European Convention on Human Rights, Articles 6 and 7 codify those crucial principles of the fair administration of justice which form the bedrock of European legal tradition.......’

‘The central importance of Article 6 is reflected in the volume and scope of applications claiming violation of its guarantees. This provision has been employed by applicants to challenge aspects of criminal, civil and administrative procedures of European legal systems, and the European Court of Human Rights has been at pains to protect the fundamental notion of the effective delivery of fair justice.........’ 

As stated above, in the section of the published report on Judicial Ethics that addresses the principle of integrity the report states, ‘a significant failure on the part of a judge to observe the requirements of the law’ would be an example of unacceptable behaviour.

 

Consequently for all the reasons presented herein Lord Bannatyne’s conduct appears to be unlawful, irrational, incomprehensible, unexplained and biased rendering it unethical and unacceptable.

In a wider context Lord Bannatyne’s failure to have any regard for my right to reputation in the face of the defender’s many false and damaging statements about me as a financial expert and whistleblower in a public authority is not in the public interest nor is it in the interests of justice.

Any repetition of a defamatory statement is actionable. The defender has fallen foul of the “repetition rule”, i.e. that a person who repeats a libel is equally responsible with his author.

According to Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), at page 74:

‘An individual is liable for his or her own delicts, committed either personally or through the medium of another. To instruct one’s employee to defame another is to commit the wrong oneself (though the employee will be personally liable too). If more than one person joins in the defamation each is personally liable for the whole loss to the pursuer, for, notwithstanding that the defamation is committed by more than one person, liability is individual and not joint and several.’

In the light of the available evidence Lord Bannatyne has effectively denied justice to me regardless of the law of Scotland on defamation by pretending, without giving reasons to enable the public to understand the rationale for his conduct, that prima facie the proposed action for defamation is vexatious and that there is no ground for it.

Yours faithfully,

                                Eddie Cairns.

Saturday, 10 December 2016

NEW POLICE INVESTIGATION IN SCOTTISH ENTERPRISE FRAUD CASE GIVES GROUNDS FOR DEFAMATION ACTION AGAINST CHIEF EXECUTIVE LENA WILSON


a. Initial Writ

 

Sheriffdom of Glasgow, 1 Carlton Place, GLASGOW G5

Court reference 

 

INITIAL WRIT

In the cause

EDWARD EDELSTEN CAIRNS

Residing at 72 Hillhouse Street,

Springburn, GLASGOW G21 4HP

                                                                                                      PURSUER

against

 

LENA WILSON

c/o SCOTTISH ENTERPRISE

Atrium Court,

50 Waterloo Street, GLASGOW G2 6HQ

 

 

                                                                                                    DEFENDER

 

The pursuer craves the court:

1. To grant decree against the defender for payment to the pursuer of the sum of FIFTY THOUSAND POUNDS (£50,000), with interest thereon at the rate of eight per centum per annum from the date of decree until payment.

2. To find the defender liable in the expenses of the action.

 

 

CONDESCENDENCE

COND. 1 The pursuer resides at 72 Hillhouse Street, Springburn, GLASGOW G21 4HP. The defender’s address is unknown to the pursuer but she is a director in Scottish Enterprise which has a place of business at Atrium Court, 50 Waterloo Street, GLASGOW G2 6HQ and this court has jurisdiction since the defamatory statements were communicated to Ms Patricia Ferguson MSP in the Glasgow area and damage was done to the pursuer in the Glasgow area. To the knowledge of the pursuer, no proceedings are pending before any other court involving the present cause of action and between the parties hereto. To the knowledge of the pursuer, no agreement exists between the parties prorogating jurisdiction over the subject matter of the present cause to another court.

 

COND. 2  On 30 May 2012 the defender wrote to Ms Patricia Ferguson MSP including the words that are reproduced below:

‘The subject matter of Mr Cairns’ complaint dates back to 1993 and relates to an accounting matter raised by Mr Cairns regarding when a credit should have been shown in the management accounts of Scottish Enterprise Ayrshire (SE Ayrshire) formerly named Enterprise Ayrshire.’

‘The matter was immediately investigated at the time by Scottish Enterprise, its principal funder, and the accounting requirements for Local Enterprise Companies were clarified. No evidence of fraud or wrongdoing was found.’

‘Following unauthorised disclosures relating to the above matter to the press and various other third parties, Mr Cairns’ position was untenable and his contract with Enterprise Ayrshire was terminated in August 1993.’

‘Mr Cairns continued to revisit this matter with Scottish Enterprise ...... and in 2011 I had to reluctantly inform him that unless he had new evidence, Scottish Enterprise would not continue to correspond with him on this matter as it had been fully investigated both internally (within SE Ayrshire and Scottish Enterprise) and externally and that Scottish Enterprise’s complaints process has now been completely exhausted.’   

Ms Patricia Ferguson MSP wrote to the pursuer on 12 June 2012 and copied to the pursuer the letter that she had received from the defender dated 30 May 2012.

Copies of the letter from the defender to Ms Patricia Ferguson MSP dated 30 May 2012 and the letter from Ms Patricia Ferguson MSP to the pursuer dated 12 June 2012 are produced and referred to for their terms which are held as incorporated herein brevitatis causa.

 

COND.3 The defender’s statements reproduced above were false and misleading.

The defender’s words falsely portrayed the pursuer as incompetent, a false accuser, a time waster and someone who had breached professional standards.

The defender defamed the pursuer since the defender’s words would tend to lower the pursuer in the estimation of right-thinking members of society generally.

According to Kenneth McK Norrie’s book, Defamation and Related Actions in Scots Law, Butterworths, (1995), at page 1:

‘The law of Scotland has always placed high regard on a person’s right to reputation. Stair, listing the important interests that are protected by the law, puts ‘fame, reputation, and honour’ third to ‘life, members and health’ and ‘liberty’.

‘(Institutions of the Law of Scotland, 1,4,4)’

‘If character, honour and reputation is unjustly attacked the law provides remedies through the actions for defamation, verbal injury, and even negligence.’

On page 8 the following is stated:

‘Defamation is, literally, the taking away of one’s fame and to be actionable the pursuer must establish that the statement or communication is injurious in the sense of being capable of harming the pursuer’s public character, honour or reputation.’

‘(Green’s Encyclopaedia of Scots Law, vol 5, 1102)’

And on page 9 the following is stated:

’Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?’

‘(Sim v Stretch [1936] 2 All ER 1237 at 1240. This test has been accepted as representing the law of Scotland in Steele v Scottish Daily Record and Sunday Mail 1970 SLT 53 and in Thomson v News Group Newspapers 1992 GWD 14-925.)’

‘The significance of this test cannot be overstated.’

Clearly, the alleged defamatory statements include the stated consequences of the alleged conduct of the pursuer for his employment, which were that his position became untenable and his contract terminated.

Stating falsely that the pursuer had acted in a way that caused his dismissal would undoubtedly tend to lower the pursuer in the estimation of right-thinking members of society generally.

The pursuer is a qualified accountant therefore the defender’s defamatory statements in the context of alleged financial irregularities were particularly insulting and damaging in the circumstances.

The defender’s defamatory statements about the pursuer resulted in Ms Patricia Ferguson MSP deciding to take no further action on behalf of the pursuer, which she notified to the pursuer in her letter dated 12 June 2012.

The defender’s words falsely indicated that the pursuer had raised concerns about a technical accounting matter when there was in fact nothing wrong and had breached confidentiality.

In fact the pursuer had been concerned about being instructed by his supervisors to overlook in his reconciliation work the omission from the balance sheet of a cash grant from the European Regional Development Fund of £187,069 which had simultaneously been deposited in a high interest bank account.

The defender’s inappropriate description of the matter can reasonably be suspected as designed to cover up its true nature, which in fact gave rise to a reasonable suspicion of the operation of a criminal conspiracy to commit fraud, not a minor accounting technicality at all.  

The pursuer’s email to his supervisors in Enterprise Ayrshire, Mr Gary Tracey and Ms Janie Maxwell, dated 17 August 1993 had recorded his objection to their instruction for the pursuer to omit from the balance sheet funds received from the EC.

The correction to the balance sheet, made within less than a day of the pursuer’s email, was a significant increase in the bank balance and a corresponding decrease in the funding required from taxpayers.

Consequently, there was indeed evidence of wrongdoing.

Before this correction the accounts had been wrong by £187,069.

In fact the pursuer did not make any unauthorised disclosures relating to the above matter to the press and various other third parties before his contract was terminated.

In fact this matter had not been fully investigated both internally (within SE Ayrshire and Scottish Enterprise) and externally and Scottish Enterprise’s complaints process had not been completely exhausted.  

Indicating falsely that the pursuer was continuing to revisit this matter with Scottish Enterprise although it had been fully investigated both internally (within SE Ayrshire and Scottish Enterprise) and externally and although Scottish Enterprise’s complaints process had been completely exhausted would undoubtedly tend to lower the pursuer in the estimation of right-thinking members of society generally.

In fact on 2 November 2016 this matter was referred by the Police Investigations and Review Commissioner’s Head of Review & Policy, Mr or Ms Iliya Zharov, to the Crown Office and Procurator Fiscal Service. Police Scotland are currently investigating alleged previous investigatory failures in this case.

 

A copy of the pursuer’s email to his supervisors in Enterprise Ayrshire dated 17 August 1993 and the Police Investigations and Review Commissioner’s letter to the pursuer dated 2 November 2016 are produced and referred to for their terms which are held as incorporated herein brevitatis causa.

 

COND.4 The defender either knew that the words communicated about the pursuer were false, or communicated the damaging statements about the pursuer recklessly not caring whether or not the damaging statements were false, therefore the defender acted maliciously.

By communicating defamatory statements about the pursuer either knowing that they were false or recklessly not caring whether or not the statements were false, the defender acted without the defence of qualified privilege.

In these circumstances the defamatory statements are assumed to be false and the burden of proof is on the defender.

 

COND.5 The pursuer is entitled to reparation from the defender for solatium in respect of insult and hurt feelings.

Heads of damage and amounts claimed are solatium £50,000 and economic losses £0.

 

COND. 6 The defender has been called upon to make reparation to the pursuer but refuses or at least delays to do so. This action is accordingly necessary.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PLEAS-IN-LAW FOR THE PURSUER

 

1. The pursuer, having been defamed by the defender, is entitled to solatium.

 

2. The defender, having communicated the damaging words about the pursuer either knowing that the words were false or recklessly not caring whether or not the words were false, acted maliciously.

 

3. Since the defender acted maliciously, the defender acted without the defence of qualified privilege.

 

4. The sum sued for being a reasonable amount of reparation in respect of solatium for insult and hurt feelings, decree should be granted as craved.

 

 

 

9 December 2016

 
                                                                                                                            PURSUER