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

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