Scottish Evictions and the Coronavirus (Scotland) Bill

The Coronavirus (Scotland) Bill was published today. It is available on the Scottish Parliament website here (PDF here).

Section 2 – the first substantive provision of the bill (with section 1 doing the microbiological needful and defining what is meant by “coronavirus”) – deals with “Eviction from dwelling-houses”, providing that “Schedule 1 contains temporary modifications to the law in relation to the eviction of private sector tenants and social tenants from dwelling-houses.

Given the focus on private sector residential lets in particular in recent days (as explained in my earlier post for the Strathclyde Law Blog), it is not a surprise this is front and centre. The provision (coupled with Schedule 1) also extends to the social sector. This post will concentrate on the private sector.

Schedule 1 sets out modifications for the three private letting regimes that still exist in Scotland, the governing regimes being: the very rare Rent (Scotland) Act 1984 (there have been no new tenancies under this since 1 January 1989); the relatively rare Housing (Scotland) Act 1988 (there have been no new assured or short assured tenancies since 30 November 2017); and the now dominant private residential tenancy. PRTs have been the sole private letting vehicle since 1 December 2017, and accordingly form the main focus of this post.

PRTs are governed by the Private Housing (Tenancies) (Scotland) Act 2016. The Coronavirus Bill modifies section 51 of this legislation, such that it removes any chance for the First-tier Tribunal for Scotland (Housing and Property Chamber) (the FTT) to evict someone on a mandatory basis.

As noted in my earlier post, for a landlord to recover possession from a tenant legally the landlord must have an order from the FTT. The FTT will only make an order if the landlord establishes the existence of one or more of eighteen possible eviction grounds. To explain further, in non-COVID-19 times there are two levels of private rented sector eviction ground: a mandatory eviction ground, which the FTT must grant if it is made out by the landlord; and a discretionary eviction ground, which the FTT may grant if it is made out, if the FTT thinks it is reasonable to do so.

The Coronavirus Bill will make all evictions that would have been mandatory (for example, owing to criminal conduct by the tenant, or the landlord wishing to sell or refurbish the property) subject to a reasonableness test. What was once shrouded in imperative language is now cloaked in discretion.

Of course, the FTT is not sitting at the moment, which means neither tenants nor landlords can get to it for any matters, be they eviction-related or otherwise, but when it sits again these rules will be relevant for that which comes before it.

Returning to the Coronavirus Bill, another thing it will do is extend the period for “notices to leave” in most circumstances, this period being something that a landlord must normally allow to run before raising proceedings at the FTT to recover possession. Subject to the FTT waiving compliance with this period in exceptional circumstances, a landlord would ordinarily need to wait 84 days or, in some specific situations, a shorter period of 28 days.

There are now three possible periods a landlord must wait out: 28 days; three months; or six months.

Whilst there is theoretically a short period of 28 days, it is now pretty much oot the windae. The only previously turbo ground that has been spared any particular change is the ground about the tenant not occupying the property, with this still needing 28 days. In fact, this ground has actually been facilitated, by saying that the period is 28 days in ALL circumstances, whereas in non-COVID-19 times you would only be able to access this shorter period in the first six months of a tenant’s occupation. Given the circumstances of the outbreak, this has to make sense, as a tenant in these circumstances warrants no particular protection (and in fact is denying someone else what could be a socially isolated home).

The grounds that could previously be dealt with in a shorter period now must wait for an extended time period. For information, in non-COVID-19 times these shorter period grounds were: 1. tenant in rent arrears for three or more consecutive months; 2. tenant in breach of a non-rent obligation; 3. tenant has a relevant conviction; 4. tenant has engaged in relevant anti-social behaviour; or 5. tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour.

Please note that it is not actually the case that these previously short period grounds have simply migrated to the new intermediate time period. Instead, that three month period only applies in relation to seven grounds, namely: 1. the landlord or 2. a member of the landlord’s family intends to live in the let property; 3. the tenant has a relevant conviction; 4. the tenant has engaged in relevant anti-social behaviour; 5. the tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour; 6. the landlord is not registered by the relevant local authority as a private landlord; or 7. the let property or associated living accommodation is in multiple occupation and not appropriately licensed.

Anything else needs six months. Accordingly, a tenant in rent arrears or in breach of another obligation of the lease should be afforded six months before being evicted. For information, it can be noted that the underlying rent arrears ground for eviction is still that “the tenant has been in rent arrears for three or more consecutive months”, it is just that the landlord has to wait six months to get this before the FTT (when it is sitting).

That deals with PRTs. Similar changes are made in relation to assured tenancies and protected tenancies under the 1988 Act and 1984 Act respectively. At this point, I should really tip my hat the various draftspeople who have slogged away at this. There was a heck of a lot to get through just in relation to the private rented sector, and they have addressed so much more than that. Quite an effort, really.

Here’s a thought though, and it represents something that was said to me in response to my last blog post which can essentially be boiled down as follows: won’t somebody think of the landlords?

I suspect many readers of this post won’t feel instant sympathy for landlords, but – as Lord Hope reminded us in his judgment in Salvesen v Riddell – landlords have rights too. There will be some landlords who could find themselves in a sticky situation if the mortgage holidays that secured lenders have been talking about do not fully emerge. Furthermore, existing rules about the enforcement of standard securities (i.e. mortgages, in terms of the Conveyancing and Feudal Reform (Scotland) Act 1970) do afford some protection to residential debtors (owing to reforms made by the Home Owner and Debtor Protection (Scotland) Act 2010), but these do not extend to non-resident landlords. Rapacious landlords might be in the line of sights of some people, but it might be that secured lenders also need to be considered. This is definitely something to monitor.

Moving away from the rented sector but staying in the housing market, as noted there are no changes to the protections of residents who could be facing mortgage debt issues (save of course the strange new protection of civil justice grinding to a halt). There are however some changes in relation to bankruptcy legislation that might help home owners who are faced with non-mortgage-related debt enforcement action.

What else does the Coronavirus Bill do? An awful lot indeed. I see it proposes something not at all controversial about jury trials. Hmm.

I’ll conclude with a much more controversial point: in a Scots law context I tend to spell “dwellinghouse” as a compound word, but the Coronavirus Bill uses a hyphen. Crazy times indeed.

Posted in Property, Residential Tenancies | Tagged , , , , , , | 2 Comments

Responsible access to the outdoors in Scotland in a time of crisis

There are so many important things happening in the country right now. I am not for a moment going to pretend that the Scottish right of responsible access to land is anywhere near even the middle of any rankings that might exist in terms of what is important for pandemic suppression (or whatever stage we are at) and wider questions of civil order and civil liberties. Having switched my degree studies from biology, chemistry and maths to law back in the mists of time, I can but rue the fact my change of focus leaves me blogging about something a bit more peripheral than very real microbiological concerns or modelling about that. So here’s a blog post about public access to land, as I furiously try to make my specialisms useful to the current situation.

Of course (he said striving for relevance), public health is not just about minimising the risk of people catching and spreading COVID-19. Naturally, that is paramount at the moment, but wider societal issues emerge. For example, people need somewhere to live, hence why evictions are being curtailed in the private rented sector (see this earlier blog post), and bankruptcy proceedings that might leave people homeless are similarly hamstrung. The right to a home is recognised in some international human rights instruments and the UN Special Rapporteur on the Right to Housing has pushed for a global ban on evictions. I suppose the right to housing could be viewed as slightly below immediate pandemic action in a crude hierarchy of current priorities; i.e. not quite the immediate priority, but still blooming important.

Further down the hierarchy comes an entitlement for people to enjoy the outdoors. Being able to get out and about is still important in these crazy times. Hear me out. If people emerge from their new world of home working, home dining and generally avoiding people to the effect that they have flattened the coronavirus curve but not flattened their bellies, that will be a new problem. A trip outside for exercise is accordingly something that the UK and Scottish Government has allowed to continue, as things stand.

The initial advice was for one bit of outdoor exercise a day, alone or with people from your household. Exercise is also something that gets a specific mention in the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. (My focus is on the Scottish regulations only – the other home nations have different legislation for this crazy situation, and for information the permission of outdoor exercise also exists outwith Scotland.) This means that someone who would otherwise be committing an offence (the pertinent transgression for present purposes being the flabbergasting in any other times offence of leaving the place where you are living) has a defence in terms of regulation 8(4). A number of reasonable excuses are offered, in a comprehensive but actually non-exhaustive list: the drafting of regulation 8(5) is careful to say “a reasonable excuse includes…” rather than “a reasonable excuse is…”. The drafting specifically includes “to take exercise, either alone or with other members of their household”. Incidentally, in the regulations this is not limited to one occurrence (albeit one exercise activity continues to be stressed in Scottish Government advice). One can only imagine the evidential difficulties of trying to prosecute someone for a second jog (albeit it seems there really are clypes out there who maybe don’t like their neighbours at the best of times who are seeking to, eh, help the police), but I digress. For completeness, leaving your home is allowed for various other reasons, such as getting necessary supplies, going to a key job, or going to a scaled-down funeral.

An aside: the last of those examples was the first bit of legislation that really made me go “oh” in a long, long time. You can only go to a friend’s funeral if there is no member of the deceased’s household or close family present at the funeral, such that in those circumstances it would be appropriate for someone outside those categories of household and close family to be there to give a respectful farewell. This situation is serious, folks, if you had not already noticed.

The approach in the Coronavirus regulations is aimed at restricting what people do rather than restricting any particular geographical area. It does not repeal any existing rights to use land, such as a public right of way or the right of responsible access. It can accordingly be noted that a trip to work, a shop or perhaps even to the blood donation centre could follow the route of a public right of way for some or all of the way. The rest of this post will gloss over public rights of way, and I’ll explain the interaction of the existing Scottish rules for public access to the outdoors in a moment. Just as a reminder though, the Scottish right to roam is found in Part 1 of the Land Reform (Scotland) Act 2003. This is explained and augmented by the Scottish Outdoor Access Code, a document drafted by Scottish Natural Heritage and approved by the Scottish Parliament. The 2003 Act provides that people have a right to cross land and be on land for certain purposes (including recreation) provided the land is not excluded from access rights (as a result of the particular characteristics of land – I will refer to non-excluded land as “access land”) and that the person taking access is acting responsibly (i.e. not interfering with anyone else as a result of taking access). Access authorities (namely the relevant local authority or, if relevant, national park authority) play a role in making sure there is adequate provision for local access, such as by having a core path network for their area (core paths being guaranteed access land, save in extreme circumstances), and by ensuring any access land is not restricted without justification.

A key point to pin down is the concept of responsible access. I’ve already noted that, in normal circumstances, you can be pretty sure access is responsible when you are not interfering with the rights of anyone else, be they land owner, occupier, another access taker, or whatever. There is more though. Certain activities can never be responsible: driving a motorised vehicle, for example (save in the case of mobility-aiding vehicles that are properly in use). Such activities are on the section 9 banned list.

That’s not the end of the story though. Access can only be responsible if it is lawful, per section 2(3) of the 2003 Act.

Turning now to the Coronavirus regulations, no mention is made of the 2003 Act, but it gets caught in the wake. It might be useful to explain exactly how this might be, and why access rights do in fact continue notwithstanding any lockdown, albeit in a highly curtailed form.

In short, the emergency legislation does not stop any land where access rights can be utilised from being access land. No new land is expressly exempted as an excluded category of land. No new land falls within a periodic exemption: it is not like foot and mouth or any other animal disease, in terms of section 7(1) of the 2003 Act, such that core paths can be switched off; nor is it like a time-limited suspension in terms of section 11 of the 2003 Act (such suspension being at the behest of a land owner or access authority, for specific purposes). And it’s not like access being disapplied by the the Land Reform (Scotland) Act 2003 (Directions for the Purposes of Defence or National Security) Order 2003, where some security or strategic requirements necessitate that specific land is excluded from access rights.

What is it that stops public access then? The general criminal law. The new Coronavirus regulations function just like any public order offence, say aggravated trespass or mobbing. The land might be accessible, but as soon as you commit a criminal offence, you are not responsible.

The Coronavirus regulations say it is an offence to leave the place where you are living without a reasonable excuse. Exercise is permitted. Exercise is accordingly fine, and this can be done – responsibly and at a social distance – on any access land.

Before anyone asks, driving or riding a motorbike to a place to exercise is arguably not itself exercise. That is another story though; ask Derbyshire Police. For information, Scottish Natural Heritage’s guidance about getting out and about is available here. It asks people to “keep it local” and postpone outdoor trips that involve longer travel arrangements. For what it’s worth, that guidance seems to be in line with the reasonable excuses that are specifically provided for in Coronavirus regulations.

Leaving the home specifically to drive to a place to exercise does not fall snugly within any of the provided reasonable excuses. (Cycling to such a place would be fine, as it itself is exercise and pedal-powered access is catered for in the Access Code.) You might be able to make a bit more of a case for motorised travel to an exercise spot if you manage to incorporate a stop on your journey to or from another place where you were entitled to be. One suspects a police officer could take a dim view of this if you happened to do this at a local beauty spot at the same time as other people were doing the same, but perhaps a sympathetic view could be taken of someone who suddenly struggles to find a spot suitable for dog walking that is accessible from their front door in our new, locked down world. (General guidance about dogs can be found here.) Also, remember the list of reasonable excuses is not exhaustive, so splitting hairs about someone getting to an exercise spot then engaging in that exercise whilst maintaining social distancing throughout might not be the best use of police resources in the days to come.

*What of the land managers? Given access land retains that status, land managers are under a duty to respect access rights in relation to that land. That duty remains notwithstanding the Coronavirus regulations, it’s just that – obviously – the footfall in hard to reach places will necessarily be lower than it might otherwise have been. For completeness, it can also be noted that land managers are allowed to restrict access to land for legitimate land management reasons, in terms of section 14 of the 2003 Act. If a land manager is genuinely unable to manage land for fear of access takers being somehow unable to socially distance themselves from those undertaking management activities, then steps can absolutely be taken to regulate and in extreme cases temporarily prevent access. There may also be occupiers of outdoor facilities who are no longer able to staff those resources, and as such those occupiers will be keen to scale back operations and introduce clear signage about any risks at now unmanned sites to avoid any issues of occupiers’ liability. If, however, the management activities can continue alongside suitable responsible and socially distant access then the usual rules of the game apply such that spurious closures, impediments or disincentives can be challenged by the relevant access authority.

To try to bring this to some sort of a conclusion, Scotland will still be available to enjoy when this is all over. So will Scotland’s access rights. In the meantime, hopefully everyone keeps the heid, such that access takers don’t push their luck too much and, conversely, land owners and managers don’t use the situation as a means to restrict what should be perfectly legitimate, local access to land.

Thanks for reading. Now feel free to enjoy some responsible outdoor exercise. Then wash your hands.

* UPDATE on the evening of 28 March: I added what is now the third from last paragraph after some discussions with a friend, to – I hope – cover all bases. And on 29 March, I tweaked some wording to make the post completely consistent with the legislation, as the offence is leaving the place where you are living, rather than simply being out of your home.

Posted in Property, trespass | Tagged , , , , | 2 Comments

Landlord and tenant law in a time of crisis – new post for the Strathclyde Law Blog

This is one of my blog (sign)posts, which simply exists to point people somewhere else. In this case, I am pointing people to my first post for the Strathclyde Law Blog.

The Strathclyde Law Blog was recently established by the Law School at the University of Strathclyde. It now has six posts, so do feel free to have a nosey if and when you click through to my own post. (Without wishing to belittle the other posts, I would draw your attention to Professor Norrie’s post on mixed sex civil partnerships, which is an absolute pearler.) Do keep an eye on the School’s website and Twitter feed for further content.

As for my post, it is a pandemic inspired analysis of eviction in the Scottish private rented sector. There are moves – rightly – to limit eviction at a time when the income streams of many in society will be or already have been affected. Not only that, the relevant tribunal that deals with evictions has shut, meaning those seeking recovery of possession of rented property for any reason will not be able to get the order that is necessary for that process to be legal.

You can read more over at the Strathclyde Law Blog.

Blog snip

Posted in Residential Tenancies, Strathclyde, Strathclyde Law Blog | Tagged , , , , , , | 1 Comment

New book – Land Reform in Scotland: History, Law and Policy by Combe, Glass and Tindley

Edinburgh University Press recently published an edited collection about land reform in Scotland. I was one of the editors of this book, Land Reform in Scotland: History, Law and Policy, alongside a dream team of co-editors, Jayne Glass and Annie Tindley.

As might be apparent from the book’s subtitle, it has three constituent elements. It looks at land law reform from historical, legal and geography/policy perspectives. Owing to its interdisciplinary nature, the various editors took the lead in relation to our respective areas of expertise (Annie for history, me for law, Jayne for policy). We hope this works to bring the subject to life for readers from all disciplines, or indeed no discipline.

Details of the book can be found on EUP’s website at https://edinburghuniversitypress.com/book-land-reform-in-scotland.html.

My Twitter thread about the book and its contents can be found here. I don’t intend to rehash that thread fully here, but I will offer a few quick points about the book just for those who can’t be gassed with Twitter, and I will also take a moment to log more detailed thanks to a number of institutions.

The book begins with a short introduction by Jayne, Annie and me. Then there is the history section, comprising five chapters of Scottish insight, and also comparative Irish insight, bearing in mind Irish land reform also happened within the (then) UK. There are chapters on: the strange survival of the Scottish land question; land, labour and capital in early modern Scotland; agrarian radicalism; enlightenment and improvement; and conceptions of landownership. The law section begins with a chapter that straddles the law/history division, considering the history of land transfer in Scotland, before looking at more contemporary land reforms in general, then through the lenses of property theory, human rights and sustainable development. Specific chapters then look at landlord and tenant law in residential, agricultural and crofting (Highlands and Islands) contexts. Lastly, the policy section considers the planning regime, a bit more on crofting law and a recent reform to it, the implications of the size of estates on sustainable management, and Scottish and Norwegian agricultural models (and what those places can learn from each other).

In terms of thank yous, and further to the acknowledgements that feature in the book, The Centre for Mountain Studies at Perth College UHI, the Carnegie Trust for the Universities of Scotland and the Centre for Scotland’s Land Futures provided funding for a workshop activity that underpinned the writing of the book and gave a subvention to EUP to allow for its publication in a somewhat expanded form. Big up to them. Thanks also to the School of Law at the University of Aberdeen, for its support of an event that allowed some of the themes in this book to be aired, and also for contributing to the subvention to the publisher. This financial support continued even though I handed in my notice and made the switcheroo to the University of Strathclyde: I really do need to put my thanks to Professor Greg Gordon (the Head of the School of Law at the University of Aberdeen) on the record for not throwing his toys out of the pram, or indeed at me, and still making this contribution.

Finally, thanks to the team at Edinburgh University Press for all their efforts, and to the reviewer who read the book in its entirety to ensure it flowed. I am not sure if I am allowed to publicly say who that was. If you are reading this, Mr or Ms Reviewer, please take note of this public thanks nevertheless. Oh, and thanks of course to the people who wrote the chapters. Yeah, that helped – without you there definitely wouldn’t have been a nice, shiny book.

For the super keen land reform fans, there may be a few events relating to the book in the coming months, subject of course to any cancellation owing to much more important events in the world happening. I’ll try to keep you posted of these on my blog and/or via social media in due course.

EUP Book

The bonnie front cover photo, featuring Kilchurn Castle, some houses, a byre, and a pylon (at Loch Awe).

 

Posted in Land Reform, Land Reform in Scotland: History, Law and Policy | Tagged , , , , , , , , , | Leave a comment

Wildcat Haven v Wightman – Defamation

The Scottish Courts and Tribunals Service’s website has today published a ruling in a case that I have been watching like a hawk for what seems like an age. The Court of Session case of Wildcat Haven Enterprises CIC v Andy Wightman was a defamation action: not my usual area of interest in terms of academic research. As will become clear (and as some followers of this blog might already be aware), I did have a particular interest in this case.

This is a longread. For anyone wishing to cut to the chase, the BBC has an online report of the case and the outcome here. Further links are digested below.

This court action was brought by a company registered in England (company number 9664321) called Wildcat Haven Enterprises CIC against the Scottish Green Party MSP (for the Lothian region) and land reform campaigner Andy Wightman.

Regarding the status of the pursuer, with “pursuer” being the term for someone bringing a civil action in Scotland, CIC stands for “Community Interest Company”. The CIC is a legal form for social enterprises that was introduced into UK law roughly ten years ago. To obtain CIC status, a CIC must have an “asset lock” such that its assets cannot be readily eroded, save in specific recognised contexts, including to a pre-nominated body. The documents lodged at Companies House indicate that on its incorporation (in June 2015) Wildcat Haven Enterprise CIC (which I will now refer to as “Wildcat Haven”), nominated Highland Titles Charitable Trust for Scotland as its potential recipient for any assets. This was later amended to The Woodland Trust (in September 2015). In paragraph 2 of his judgment, Lord Clark also notes that the pursuer was the fundraising vehicle for the similarly named Wildcat Haven CIC, a different community interest company which has as its object the conservation of Scottish wildcats.

As for the defender, the Scottish term for the person being sued, Mr Wightman was being sued in his personal capacity. At this point I declare the first of many interests: I count Andy as a friend and I have referred to his work on land reform in Scotland in my own work on many occasions.

The area of Scots law that was at issue here was defamation. Defamation is part of the law of delict, which in English law is called tort. Delict is a subset of Scots private law and it applies pretty much automatically even where you did not intend for your actions to have legal consequences, and also in situations when you have intentionally set out to do wrong by someone (separately to any criminal law concerns). Defamation can come into play where someone has said or done something that causes someone else reputational and perhaps related financial harm. In Scots law, defamation is broadly analogous to the English concepts of libel and slander; in English law there is a slight distinction in treatment depending on whether a statement was rendered in a durable form or made in a more fleeting fashion – a division Scots law does not bother making. A defamation action can be brought by someone when they think that someone else has made a statement that would lower their standing amongst right-thinking members of society where there was no justification to make that statement. That is what Wildcat Haven argued regarding certain internet utterances made by Andy Wightman and commenters on his blog about Wildcat Haven’s activities.

Headline news: Wildcat Haven has been unsuccessful in the pursuit of this claim. Wighman has successfully defended the action.

This will take quite some unpacking. The introduction above is already a bit wordier than I wanted it to be, but I felt it was important to get the scene absolutely set. Lord Clark does a good job of this in the opening paragraphs of his judgment too. At this point, readers are invited to have a look at the judgment and report back to this blog post in a moment. Alternatively, fix yourself a nice cup of tea if you like, then read on.

 

The background

This case has quite a back story. I feature as something of a bit-part player. The story sort of begins in 2015, when some banter and property law pedantry about a Scottish souvenir plot scheme got out of hand, on what some people (mainly me, but also the defender in this case) affectionately bestowed the moniker #HighlandTitlesDay. Dr Jill Robbie (of the University of Glasgow) and I also tried to turn this into a learning moment, penning a short piece for the Edinburgh Law Review on the law in this area. Further edited highlights around this peculiar episode and my association with it include when I (or rather the former hosting service Storify) was served with a DMCA notice as my internet output was apparently in breach of relevant intellectual property law in the USA (it was not, and I still believe I had a counterclaim for the spurious use of the DMCA device had I bothered to raise proceedings in a relevant state) and when, in something of a rapprochement, one of the people involved in Highland Titles offered me my very own souvenir plot at Glencoe* Wood. *Glencoe Wood is in Duror, south of Glencoe.

Back to 2015 and the initial Highland Titles niche interest internet shitstorm. You can get the full story according to Combe via those links above. For those who cannot be bothered clicking – and the case of Falter v Altzmon** that is highlighted in Lord Clark’s ruling suggests most readers will not bother – the abridged back story is as follows. Basically a Channel Islands registered business called Highland Titles Limited (which was connected to a different legal entity, namely the aforementioned Highland Titles Charitable Trust for Scotland) sold small parcels of land and bonnie certificates relating to a specific plot of land, but those certificates fall short of what the Keeper of the Registers of Scotland can register on the Scottish Land Register. As such the real right of ownership of the land would not transfer, with associated implications for being able to style yourself as a Scottish land owner (which some of the related sales puffery said you were able to do). A few people critiqued this practice, with differing measures of patience, humour and exasperation.

As it happens, the souvenir plot market was not stymied by this random happening on the internet. The practice then resurfaced in the form of an initiative that was geared towards protecting Scottish wildcats. No comment on the ecological or other merits of this scheme will be offered here, but again I was a tad sceptical about the model in Scottish land law terms. Others commented on the scheme as well. Andy Wightman was one such commenter.

The company behind the scheme was not happy about his comments.

This company told Andy it planned to sue, and a summons was eventually served on him in March 2017.

At this point (or at least, when Wightman publicised he had received a lawyer’s letter, back in 2016), this blogger became a bit worried about his output on the same topic and checked his own back catalogue and receipts. (I touched on the Wildcat Haven initiative itself in a 2015 blog post.) Happily, this blogger was not sued – the prospect of suing a university lecturer as opposed to a high-profile land reforming MSP was perhaps not so attractive to any potential pursuer. Anyway, this led to this blogger keeping his powder very dry indeed on the topic; probably my first direct experience of the so-called chilling effect of defamation law (which my former University of Aberdeen colleague Dr Justin Borg-Barthet has considered in relation to the altogether more serious matter of the assassination of Maltese journalist Daphne Caruana Galizia, most recently here).

Any chilling effect regarding this Wildcat Haven matter has now been suitably thawed. For the record though, I am happy I did not defame anyone, and can note that at various times over the course of this wider souvenir plot debate (i.e. not just the Wildcat Haven brouhaha) some less than complimentary things were said about me by internet people. So be it. I have had worse things happen to me in my life and I soldier on. Further, my own output is now more than three years old, and accordingly would normally be timed out in terms of bringing a defamation action against me.

Incidentally, the limitation period in England and Wales is one year, a point ruefully highlighted by Wightman on his blog at a time when he might have been safe had Scots law been in alignment with English law. That blog post also highlights some other important facts, not least the implications for him as a sitting MSP if he was declared bankrupt.

Two other quick bits of background, adverted to in that blog post. First, Wightman initially received letters from a law firm, but that firm later stopped representing the pursuer and a director of Wildcat Haven took over the case as a lay representative. Quite a daunting prospect, I am sure, but there are rules to allow for this and Lord Clark details in his judgment that he was happy these rules were followed. Second, Wightman was sued for £750,000. This is a significant amount of money. At the time this sum became public, I recall an offline discussion with a better media lawyer than me noting that a false allegation of something serious such as (for example) paedophilia might not normally attract such a high damages figure. At one stage late in the proceedings, the pursuer tried to reduce the sum claimed for and move the case “down” from the Court of Session to a sheriff court. This was refused by another Court of Session judge, Lord Glennie. This episode is not referred to in the judgment but is captured in a Twitter thread by Michael Gray.

One other piece of background information, on the cost of pursuing a defamation action. It is not cheap to do so. You do not get legal aid to do so. At one stage, the pursuer was ordered to lodge a five-figure sum of money as caution (pronounced kay-shun, basically a guarantee). When you add in the fact that the latter stages proceeded with lay representation of the pursuer, all of this would have been quite a challenging process. In a way I am impressed the action made it this far.

Oh, and Wightman crowdfunded his defence. I declare another interest: I donated to this. Many other people did too.

With that background to the facts and some explanation about what happened in court, we now turn to what was at issue and Lord Clark’s ruling.

 

The matter before the court

In the opening paragraphs of his ruling, Lord Clark sets out details of the two blog posts by Wightman (one of which incorporated a later update, also written by Wightman), plus Twitter content and a Facebook post by him that it was claimed contained ten instances of defamation. Further, commenters “below the line” on Andy’s blog offered analysis which, it was also claimed, was defamatory (either in their own right or read in conjunction with the blog content). Some other tweets that had been about souvenir plotting and/or Wildcat Haven’s activities were also drawn into discussions.

As noted at paragraph 12, the pursuer argued the defamatory imputations contained in the published material caused reputational damage and financial loss, with those losses being the lost opportunity of a forestry partnership with a body called Arkaig Community Forest (after that body stepped back from the scheme), and also that sales of souvenir plots had dipped (primarily owing to the negative connotations with tax havens and perhaps even tax dodging). The only person who gave evidence for the pursuer was its lay representative (and director) Paul O’Donoghue. Wightman, needless to say, did not accept this version of events, and he gave evidence on his own behalf. He was also able to draw on another witness about the lost forestry opportunity, namely a Mr Servant from Arkaig Community Forest. This was unfortunate for the Pursuer because, as noted at paragraph 80, “the evidence of Mr Servant refuted in its entirety the factual basis presented by the pursuer for this alleged loss [of a forestry opportunity].”

In passing, it can be noted that Wightman did not get everything right. For example, in his second blog post he continued to refer to the potential beneficiary of any community interest company proceeds as being the Highland Titles Charitable Trust for Scotland rather than the new planned recipient (the Woodland Trust, as detailed above). He also got the timings of certain people holding office in Wildcat Haven wrong at one stage (see below). Simply getting something wrong is not in and of itself actionable though. Saying something that is not true is not always defamatory: if I incorrectly describe someone as left-handed in a context where hand proficiency is irrelevant, that person is not going to be able to sue me. Lord Clark also discussed in his judgment defences that are available for comments made by someone in the public interest in relation to honestly held opinions with sufficient accuracy and referencing. He also discussed a potential failsafe, namely an instance of privilege (i.e. legally protected communication) on the basis of the Reynolds defence, named after the 2001 case of Reynolds v Times Newspapers Ltd.

After setting out the submissions of both sides and the legal authorities that were relevant – the legally represented defender’s list at paragraph at paragraph 19 is substantially longer than the pursuer’s list a paragraph 18, but credit to the lay represented pursuer for presenting a credible list of its own – Lord Clark starts to set out his decision and reasons at paragraph 20. With reference to case law, he explained the objective test that applied in trying to ascertain what a reasonable reader would take from the material complained of: what was the ordinary and natural meaning? This was important. There were some instances when the pursuer argued the defender must have meant X, but Lord Clark was not willing to accept a meaning of X would be taken by a reasonable reader on the basis of the words used and their context. He also teased out the important context of the social media user, an emerging demographic who may be a bit more comfortable with the cut and thrust of the interweb than the man on the Clapham ominbus reading a national newspaper. With reference to the case of Stocker v Stocker, he noted:

It would be wrong to engage in elaborate analysis of a statement made on social media, or to parse it for its theoretically or logically deducible meaning: rather, the search for the single meaning should reflect the fact that social media is a casual medium that is in the nature of conversation rather than carefully chosen expression and is pre-eminently a medium in which the reader reads and then moves on

After discussion of whether content accessible via a hyperlink provides context (TL:DR – it depends), there is then discussion of the important defamation considerations of “fair comment” (paragraph 28), truth (paragraph 31), and responsibility for comments made by others (paragraph 32). For the latter, Wightman highlighted the Electronic Commerce (EC Directive) Regulations 2002, regulation 19, which provides a defence in relation to website comments where a defender does not have an awareness of relevant facts or circumstances that have given rise to a claim for damages. There is then a lengthy discussion of “The defamatory imputations”.

 

Was Wightman liable for defamation?

Despite Andy “winning” this case, this was not all plain sailing for him. At paragraphs 36-38, there is discussion about how a reply to a comment on his blog about whether an activity was “illegal under the trades description/consumer law?” had a defamatory meaning, but (fortunately for Wightman) a defence was available. Wightman’s response was that it “may well be illegal…“. Lord Clark noted this was an expression of comment or opinion based upon facts which are true and made on a matter of public interest (i.e. there was a defence), and there would have been a backstop defence of substantial truth. Another statement with defamatory meaning was also highlighted at paragraph 41, but again a defence of fair comment was available. The statement was “Wildcat Haven has adopted Highland Titles dubious methods of selling small souvenir plots of land and claiming that the purchaser is the owner.” In the surrounding context with its baggage about souvenir plotting, without a defence this could have sounded in damages. For my part, I will simply note in passing that I do not take this as Lord Clark pronouncing that buying a souvenir plot makes you a land owner, but I digress. In relation to this comment, there was also an issue of two Wildcat Haven badged entities being clumsily conflated by Wightman. Once again though, the “defence of fair comment is made out” (paragraph 42). The matter was in the public interest and the meaning that was being complained of a view “can reasonably be taken to be an inference, conclusion, criticism, remark or observation“. There was no liability here either.

The pursuer had less success in arguing that a defamatory meaning attached to any particular statements regarding: (to adapt Lord Clark’s headings) “tricking members of the public” and “not using the proceeds of sale of souvenir plots to fund conservation of wildcats” (paragraphs 43 – 46); selling plots that have already been sold as part of another wildlife initiative (paragraph 47); remitting sums to a Channel Islands company (paragraph 48); lumping Wildcat Haven in with Highland Titles Limited as an entity (owing in part to the placing of the latter’s logo on a blog post) (paragraph 49); and transferring sales proceeds to Higland Titles Limited (paragraphs 50-51). The defamation that the pursuer saw in these instances was not necessarily what a standard blog punter would read.

The pursuer almost somehow found a chink in Wightman’s armour in relation to an allegation that was not specifically addressed in written or oral submissions. This regarded the overlap between office holders in Wildcat Haven and Highland Titles Limited, which (coupled with the earlier comment about practices which may well be illegal, and other allegations regarding dubious practices and opaque financial affairs) could have a defamatory meaning (paragraph 52). Once again, however, Wightman was able to avoid being held liable, as even with certain inaccuracies there was sufficient truth behind his comment (i.e. there was some overlap between the entities) and it was made in the public interest. The fair comment defence accordingly applied, and once again a backstop defence of veritas (truth) would have been available. This passage of Lord Clark’s ruling then concluded by considering the statement about where the pursuer’s assets would go in the event it was wound up, with it being noted that this was not defamatory owing to its restricted situation to a winding-up situation, and also noting that even when Wightman got the potential destination of the funds in any such situation wrong this did not render it defamatory (paragraph 53).

After those individual moments from blog posts (and replies to comments), there is consideration of the so-called “central sting” of the blogged content. Again, this was found to be non-defamatory (paragraph 54). Analysis then turns to social media content, looking at tweets which suddenly look a heck of a lot more formal and important when they form part of a court judgment, but that notwithstanding it was held that the defamatory meaning which the pursuer was angling for was not one which the ordinary reasonable reader would take from that material, whether directly or by innuendo (paragraph 57). The Facebook post also survived scrutiny, in part because it was not designed to be viewed with absolute precision, especially when it is really simply inviting perusal of the blog (paragraph 59). Meanwhile, comments on Wightman’s blog did not make him liable, either owing to the statutory defence mentioned above or the more traditional fair comment defence (paragraphs 60-63).

Finally, there is analysis of an eclectic selection of tweets, including one which Lord Clark felt did have a defamatory imputation. This tweet stated “Fact that Wildcat Haven has blocked my IP address suggests whole operation is being run by Highland Titles” and had followed closely after another tweet about this being a tweet which referred to “Latest scam from Highland Titles“. Once again, fair comment offered an outlet, so there was no liability (paragraph 66). A second tweet where Wightman replied “yes” to a question about whether “the Highland Titles mob” ran the pursuer was not held to be defamatory, as there is nothing in the context of that tweet that implied anything negative.

 

Supplementary issues

After that substantive content, Lord Clark then helpfully sets out the situations that might have been defamatory but were not (owing to defences) and notes the instances where the defender did actually get things wrong but explains why that does not actually matter on this occasion (paragraphs 69-70). There is then a discussion about malice and the effect it might have had in the case. The pursuer had argued, Lord Clark explains, that the defender’s malice in making the publications should prevent a defence of veritas (i.e. telling the truth), but that would not be relevant in this context. Nevertheless, Lord Clark then explains where malice might have been relevant, namely in the context of the so-called Reynolds privilege. This can only apply where a defender’s statements are responsible journalism, which will not be the case if they were malicious (paragraph 72). On this point, the pursuer’s raising of the issue of malice gives Lord Clark a chance to make a favourable analysis of Wightman, noting (at paragraph 73) that “the pursuer’s submissions about malice (which were in any event not the subject of specific averments) are without foundation. Mr Wightman was a credible and reliable witness. He gave his evidence in an honest, straightforward and coherent manner.” Lord Clark also officially notes that the “pursuer’s further assertion that the defender acted as an internet troll is manifestly unsupported.” Given I would have been guilty by association had this assertion been made out, I am quietly content with that conclusion.

Whilst this did not impact directly on the case, there is then some discussion about whether the Reynolds defence could have applied to a tweeter/facebooker/blogger in Andy’s position. Lord Clark felt this defence would not apply to the social media content, and also – even when stretching the standard of responsible journalism in a practical and flexible manner – it did not apply to the blogging. The fact there was an error in one blog post that more careful research might have revealed (regarding where Wildcat Haven’s assets might go on its being wound up), the lack of any looming deadlines or need to publish at that stage, and the failure to seek comment from the subject matter of the story all featured here.

Finally, Lord Clark set out his views on what might have been appropriate in terms of damages. As already noted, the apparent loss in relation to the initiative at Arkaig was somewhat downplayed by the evidence of a director of Arkaig Community Forest, which left only the loss relating to the wider business and any knock to its cashflow to be considered. On this, Lord Clark noted the following.

The evidence about any actual decline in sales was at best unclear (partly because in December 2015, after blog 1, the pursuer apparently enjoyed its highest ever sales) and in any event there was simply nothing to show the net effect in monetary terms, having regard to costs and expenses, of the decline in sales. I have had regard to the fact that after the defender’s publications there was some evidence of reactions which were adverse to the pursuer, expressed on the defender’s website and on social media. If one or more of the significant defamatory imputations had been established, with no defence, there may arguably have been some ground for awarding general damages within appropriately modest bounds. However, if only less significant defamatory imputations had been established, I would have found it impossible, on the evidence led, to conclude that any damage to trading reputation was thereby caused; it could equally have resulted from the statements by the defender which are legitimate because of the defences of fair comment or veritas.

It would be unfair to criticise a lay representative just for the sake of it, and I don’t want to seem too critical given my own back story here. That being said, this passage on loss does not read well for the pursuer.

 

Conclusion and Reaction

What now? A decree of absolvitor has been granted. Wightman does not need to pay any damages. As one of the crowdfunderers (is that a word?), Andy has contacted me and no doubt every other crowdfunderer via the crowdfunding platform to say he will be in touch about any possible refund. This will happen after the expenses hearing. That expenses hearing could be interesting. Court of Session time is not cheap, which is something that Ben Christman and I touched on in a recent Edinburgh Law Review article.

Further reaction to the case can be found in a Twitter thread by Andy, the BBC story I linked to above, and this report on Scottish Legal News (which describes Andy as being “vindicated”). As for the unscientific jury of people on the internet, almost everyone I have seen commenting on the case on Twitter has welcomed the ruling. The court of public opinion accordingly seems happy (albeit I accept there may be a bit of selection bias going on in relation to who I follow on Twitter). I cannot see any news release on Wildcat Haven’s website about the case at the moment. ***but see below

Will there be any other legacy of the case? Other than giving delict lawyers something else to consider, which is no bad thing in a case law driven legal system like Scotland’s, one can imagine this case might give fresh impetus to the reform of defamation law in Scotland. The Defamation and Malicious Publication (Scotland) Bill is currently before the Scottish Parliament. I think that is enough analysis of defamation law for one blog post though.

 

Addendum

Yes, I am the “[MC]” referenced on page 57 and 61. I am happy to remove whatever ineffective cloak of anonymity I was hiding under.

 

UPDATE on 12 March 2020

The Scottish press today has indicated that the pursuer plans an appeal. Additionally, a spokesman for Wildcat Haven has been quoted in the papers (including The Scotsman and the Guardian). There is a fuller quote in the Evening Express report (provided by Press Association). That fuller quote is as follows:

It is baffling to us as laypeople that Mr Wightman, an MSP, can be found by a High Court judge to have made multiple untrue statements, and made defamatory statements, yet is found not guilty of defamation because of a legal technicality.

Wildcat Haven Enterprises did not have the funds to pay for legal representation, while on the other hand Mr Wightman could afford arguably the most-expensive legal team in Scotland.

This was a real David and Goliath situation and in this case Goliath won but only on technical points.

The quoted content flows into a note that the spokesman said Mr Wightman’s blogs were an “unprovoked and unwarranted attack“, adding: “There is no doubt that Mr Wightman has damaged our efforts to save the Scottish wildcat.” (More on that below.)

A direct quote then continues:

We are particularly happy that the judgment makes abundantly clear that Wildcat Haven Enterprises is not or ever has been, controlled by an offshore tax haven entity or has ever operated through one.

The unsuccessful pursuer is of course entitled to set out its position, and if an appeal is indeed in the offing it would be unfair to critique any content that might be used in such an appeal. What I will say though is the statement is noteworthy for what it does not say. Okay, latterly the pursuer may not have been able to afford legal representation (which I will take at face value), but clearly at one stage the pursuer was able to engage a large Scottish firm, and furthermore the pursuer (whether as a result of previous legal advice or otherwise) at some point actively chose to sue in the Court of Session, which is comparatively more expensive than the local sheriff court would have been. To skim over those points is not wrong, but it does leave part of the story untold.

The only other thing that might be worth saying regarding the statement at this stage is this case was not directly about whether or not Wightman had damaged the pursuer’s efforts to save the Scottish wildcat, or indeed anyone else’s efforts to save the Scottish wildcat. It was about whether the defender had defamed the pursuer. Granted, it would not be ridiculous logic to argue defaming an entity might affect its wider activities, but it should be recalled that even if defamation had been made out, Lord Clark’s discussion of the losses that the pursuer actually suffered show that the pursuer did not sufficiently substantiate what those losses were. As noted though, I will leave things there, pending any appeal.

One final update in conclusion: here is a link to the reaction of Scottish PEN, an organisation which is campaigning for defamation law reform in Scotland.

Also, in full blogging disclosure mode, I can confirm that I have made a couple of edits as compared to what was first published to fix typos or to make my meaning clearer. The main tweak relating to meaning is to clarify the Reynolds defence did not apply to this blogged content, rather than a blanket statement that Reynolds cannot apply to blog posts.

 


** For information, the case of Falter v Altzmon is about determining what an ordinary reader will do, with Lord Clark quoting the following: “It is perhaps unrealistic to proceed on the basis that every reader will follow all the hyperlinks“; and “Only the most tenacious or diligent reader could be expected to follow every single one of those hyperlinks.” Well done if you made it this far and clicked the hyperlinks.

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Brexit Day

It’s Brexit Day, and I don’t know what to say.

There is of course the school of thought that it is always preferable to have something to say rather than feel the need to just say something, but here I go, tapping away on my keyboard.

I’ve written about Brexit on this blog before, most recently here (where I recall a moment from the 2014 Scottish independence referendum campaign when I canvassed some Polish folk who were worried about iScotland’s place in the EU. Yeah, about that…) Anyone who follows this blog or my Twitter account will have noted that I would have been quite content for Brexit to have been derailed by some intervening democratic event. That clearly hasn’t happened and the 2016 mandate is being fulfilled. So be it, and I get it. If there had been a 52/48 vote in favour of Scottish independence that had gone unimplemented I would have been fair scunnered. In top platitude mode, we are where we are. And, as noted in that earlier blog post, we are all Brexiteers now.

Maybe it sticks in the craw, that. Today, though, it doesn’t matter. We are all Brexiteers now.

The first time I heard that phrase in person was back in 2017, when Peter Chapman MSP and I (plus a few others) took part in a panel debate for the P&J on Brexit and Land Reform over at Thainstone. Peter spoke before me in that event, and I offered a short response, in which I (politely) reserved the right to not quite call myself a Brexiteer just yet, but here we are three years later.

What now, then? We try to make the best of it. I’ll stay friends with all the lovely people I’ve met as a result of the European project, and ensure auld acquaintances are not forgot. I’ll hope we get a decent deal after the transition period. I’ll keep a close eye on what is happening regarding Scotland. For now though, I’ll plod on. There’s nothing else for it, really.

 

 

What’s that? Were you expecting an inspirational conclusion? Sorry, I don’t have one. This might be a Brexit metaphor.

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The management of wild deer in Scotland: Deer Working Group report

The Scottish Government has just published the final report of the Deer Working Group, as detailed in this news release. The report is available as a PDF here.

I was one of two external advisers to the group. Needless to say, this role was not on the basis of my heretofore undisclosed status as a deer ecologist or anything else, rather I was asked to provide support in relation to any legal issues that cropped up. I hope I have discharged that function well.

Otherwise, I will let the report speak for itself, and also link to various responses to should you wish to read any more (links are arranged in no particular order and presented without comment).

DWG Cover

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