Legal history as 'virtual court' hears Kezia Dugdale appeal case

A legal appeal against Kezia Dugdale's win in a defamation case has been heard in a 'virtual court'.

Lord President Lord Carloway, along with Lords Brodie and Menzies this morning heard the appeal case of “Wings over Scotland” blogger Stuart Campbell, who claims Ms Dugdale defamed him in a newspaper column three years ago.

Kezia Dugdale: ‘This case was never about the definition of homophobia’

Ms Dugdale had written a comment article about alleged “homophobic tweets” made by Mr Campbell in reference to the sexuality of former Conservative Scottish Secretary, David Mundell.

Mr Campbell lost his defamation case and demand for £25,000 in reputational damages at Edinburgh Sheriff Court last April, when Sheriff Nigel Ross ruled that while Ms Dugdale was incorrect to imply Mr Campbell was homophobic, she was protected under the principle of fair comment.

In a legal first, the three Court of Session judges heard Mr Campbell’s appeal against Sheriff Ross’ judgement, via a remote video link as the courts are closed as a result of the coronavirus lockdown.

Journalists were also able to watch proceedings on a secure closed link as Craig Sandison QC, put forward the case for appeal, and Roddy Dunlop QC acting for Ms Dugdale, defended the original judgement and asked that the appeal be rejected. The Clerk of Court was also in virtual attendance.

Mr Sandison argued that Sheriff Ross had made the wrong decision as Ms Dugdale’s allegation of “homophobic tweets” was made as “fact, not opinion or comment”, that it was not “clearly identifiable as comment” for the ordinary reader of the paper who would assume Mr Campbell was an “abusive homophobe”, and that it did not give the full facts of the story on which she was basing her comment.

He also argued that the use of the plural “tweets”, rather than just “tweet”, would leave the ordinary reader assuming that Mr Campbell had written more than just the one tweet which was at the centre of the homophobic allegation.

Mr Sandison also said Ms Dugdale had failed to ascertain whether her comment was “fair” by reading blogs written by Mr Campbell, which he said would show “indupitably” that he was not a homophobe and that while the blogger was “abrasive”, “very rude” and “swore a lot”, Ms Dugdale had not been rude in return, but had made “a falsehood about an important feature of his character”.

Leading the defence, Mr Dunlop said that Mr Sandison had not revealed any new argument from the original case. He said it would have been obvious to an ordinary reader that the former MSP was writing a comment column in the paper and that by writing she was “shocked and appalled” by Mr Campbell’s tweet, she had made her opinion clear.

On debate around whether the use of the word “tweets” rather than the singular “tweet” was prejudicial towards Mr Campbell, he stressed that the blogger was retweeted by many others, which would allow the use of the plural.

He added that Sheriff Ross had accepted in the original case that “everyone knew what was being spoken about” in regard to the tweet as there had been newspaper stories and other comment pieces written about it. “The tweet was firmly in the public domain and the subject of widespread commentary,” he said and added that any “fair reading” would have found Ms Dugdale explained why she found it homophobic, and there was no “duty on inquiry" for her to look at any other writings by Mr Campbell.

He said the tweet had made a “gratuitous reference” to David Mundell's sexuality and that had left Mr Campbell “open to commentary that doing so was homophobic” and pressed the judges to reject the appeal and allow the original judgement to stand.

Lord Carloway said a written judgement would be published in due course.

Despite one technical hitch when Mr Dunlop could not be seen as a result of “low bandwith”, the Scottish Courts and Tribunals Service (SCTS) said the virtual courts could become a permanent feature in future.

SCTS chief executive Eric McQueen said that while today’s hearing was in response to the coronavirus, “there is no doubt that the learning will inform our thinking to make virtual courts a permanent addition to our Scottish courts.”

He said remote hearings could be used in civil courts throughout Scotland, beginning with the Court of Session, but also including the lower courts.

“We are currently in discussion with sheriffs principal and the Law Society for Scotland on the scope of urgent and essential civil business in sheriff courts, to assess whether other business can be carried out remotely and what phased steps can be taken.”

Lord Carloway said: “The technology worked well from the Court’s perspective and the hearing captured the ambience of a physical courtroom. I would like to thank the Scottish Courts and Tribunals Service IT team for their work behind the scenes which enabled today’s hearing to take place. The judiciary fully support the promotion of virtual cases where it is technologically possible and appropriate in the current situation.”

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