Sheriffs sitting in the Sheriff Appeal Court in Edinburgh ruled on Tuesday that their colleagues in the Court of Session should hear an appeal brought by Stuart Campbell, of the Wings Over Scotland blog.
Mr Campbell, of Bath, Somerset, wants judges to overturn a decision made in April 2019 by Sheriff Nigel Ross at Edinburgh Sheriff Court.
Mr Campbell sued Ms Dugdale after she claimed in a newspaper column that he had sent “homophobic tweets”. Mr Campbell said Ms Dugdale’s claims damaged his reputation and that she defamed him.
Sheriff Ross ruled that Ms Dugdale was incorrect to imply that Mr Campbell is homophobic but concluded that her comments were protected under the principles of fair comment.
Now Mr Campbell’s legal team are appealing the ruling. They claim that Sheriff Ross was wrong.
However, advocate Craig Sandison QC told appeal sheriffs Duncan Murray, Marysia Lewis and Norman McFadyen that the Court of Session should hear the new case.
He said this was partly because Sheriff Ross made his decision on English case law.
Mr Sandison said English law differed from Scottish law on defamation and that the Inner House, the appeal court of the Court of Session, needed to rule on whether principles used south of the border could be used in Scotland.
Mr Sandison added: “The authorities relied upon by the sheriff were English cases. There is a concept of honest comment in English law whereas there is a concept of fair comment in Scots law.
“In my submission there is a novelty in this case which merits further consideration by the Inner House.
“In my submission in all the circumstances of this case, the court should remit this matter to the Inner House of the Court of Session for them to provide an authoritative definition of defamation.”
Sheriff Ross ruled that Ms Dugdale was not liable to pay any damages to Mr Campbell, who had been seeking £25,000.
The case centred on a tweet posted by Mr Campbell during the Conservative Party conference in 2017 in which he said that Tory MSP Oliver Mundell “is the sporty of public speaker that makes you wish his dad had embraced his homosexuality sooner.”
Mr Mundell’s father is former Scottish Secretary David Mundell. In January 2016, he came out as gay in a decision he described as “one of the most important of my life.”
In a column printed in the Daily Record, Ms Dugdale wrote that Mr Campbell’s tweets were “homophobic”. She also accused him of spouting “hatred and homophobia towards others” from his Twitter account.
She later raised the tweets in the Scottish Parliament and called on SNP politicians to “shun” Mr Campbell.
Mr Campbell strongly denies his tweet was a homophobic reference to David Mundell being gay and insisted that his message was “satirical criticism” of Oliver’s public speaking skills.
At a hearing heard in Edinburgh Sheriff Court, Mr Campbell said he was a “firm advocate of equal rights for gay people” and said it was “absurd” to describe his tweet as homophobic.
In his judgement, Sheriff Ross rule that Mr Campbell “does not hold homophobic beliefs or feelings” and had “demonstrated by his conduct that he supports equality for homosexual people.”
The sheriff concluded that Mr Campbell’s tweet about Oliver Mundell “was not motivated by homophobia and did not contained homophobic comments” and that Ms Dugdale had therefore been “incorrect” to describe it as homophobic.
But Sheriff Ross added: “Ms Dugdale’s article contained the necessary elements for a defence of fair comment.
“It was based on true facts; the statements complained about were honest; it concerned a matter of public interest and the comments were fair.
“Her comments were fair, even though incorrect.”
This prompted Mr Campbell to lodge his appeal.
On Tuesday, Ms Dugdale’s lawyer Roddy Dunlop QC said he was “neutral” about the Court of Session being asked to consider the point about whether English legal principles could be used in Scottish defamation cases.
He said that the present legal authority which is used by Scottish judges in defamation cases dates from 1921.
Mr Dunlop added: “My learned friend is absolutely correct in saying that there’s a paucity of authorities in this matter.”
Sheriff Principal Murray then referred the case to the Court of Session.
He added: “We shall remit this case to the Inner House of the Court of Session.”