Tommy Sheridan’s case has taken a bit of a back seat as far as press coverage is concerned, having been overwhelmed by the tide of News of the World disgrace over the summer, and following on the rejection of his application for leave to appeal against his criminal conviction for perjury.
The Scotsman today has an article which discusses Mr Sheridan’s appearance at a fund raiser to assist with his civil case.
Tommy Sheridan - in happier times
The article is one which seems to maintain the recent proud tradition of our newspapers, both the Scotsman and elsewhere, having very poor coverage of the meat of legal issues.
David Allen Green, the highly acclaimed lawyer and commentator, has focussed for some time now on “Bad Law” coverage in the media – discussing cases where what is reported bears little or no relation to the issues actually raised, or where the legal understanding of the position in the article goes badly wrong. This piece seems, to me, to fall into that category.
The article states:-
“(Sheridan’s) solicitor, Aamer Anwar, is pursuing the cash payment on the basis that News International has yet to lodge an appeal against the initial decision at the Court of Session in Edinburgh to award damages to Sheridan over a series of allegations about the left-winger’s private life in the now-defunct News of the World.
“News International, which has been dogged by allegations of phone-hacking, pledged to appeal against the damages award in the immediate aftermath of Sheridan’s conviction in Glasgow last December.”
It goes on to quote Kenny Ross, described as a leading figure in the Fire Brigades Union, and chair of the Defend Tommy Sheridan Campaign. He is quoted as saying:-
“Tommy is pursuing News International for the £200,000 he was awarded in 2006. His solicitor is writing to News International to say that Tommy wants the money the court said he should have. News of the World hasn’t lodged an appeal against the original decision, despite saying that it would do that. Tommy’s solicitor will be arguing for the damages to be paid on that basis.”
What’s Wrong With The Piece?
It struck me as rather odd that, according to the article, News International (NI) had not appealed against a judgement made by a jury in August 2006.
Generally courts only allow appeals to be lodged in a very short time window after decisions are made. Five years for lodging an appeal doesn’t fit anywhere within the rules in Scotland anyway.
The Rules
Section 29 of the Court of Session Act 1988 deals with applications for review of the verdict of a jury in a civil case in Scotland. It states at subsection 1:-
“Any party who is dissatisfied with the verdict of the jury in any jury action may, subject to such conditions and in such manner as may be prescribed, apply to the Inner House for a new trial on the ground—(a) of misdirection by the judge; (b) of the undue admission or rejection of evidence; (c) that the verdict is contrary to the evidence; (d) of excess or inadequacy of damages; or (e) of res noviter veniens ad notitiam; or on such other ground as is essential to the justice of the cause.”
Chapter 39 of the Rules of the Court of Session deals with time limits for such an application. Chapter 39.1 (1) states:-
“An application under section 29(1) of the Act of 1988 (application for new trial) (a) shall be made to a procedural judge, by motion, within 7 days after the date on which the verdict of the jury was written on the issue and signed.”
Chapter 39.2 (1) states:-
“A procedural judge may, on an application made in accordance with paragraph (2), allow an application for a new trial under section 29(1) of the Act of 1988 to be received outwith the period specified in rule 39.1(1) and to proceed out of time on such conditions as to expenses or otherwise as the procedural judge thinks fit.”
Is the Scotsman suggesting that NI missed the seven day window, and indeed has done so by over five years, and nearly a year after Mr Sheridan’s conviction? In such circumstances a late review application would receive very short shrift.
If NI had instructed its solicitors to appeal following the verdict, as was publicised, then they would have a stonewall negligence claim against their lawyers if their failure to appeal resulted in them having to pay Mr Sheridan £200,000.
Has News International Actually Appealed? Yes, of Course
However, 20 seconds on Google (including stopping for a mouthful of tea) shows that the above cannot be the case.
On 11th August 2006 the BBC reported, under the heading “Tabloid launches Sheridan appeal” that:-
“The News of the World has launched an appeal after a jury awarded Tommy Sheridan £200,000 in damages in his defamation case against the tabloid. The appeal was lodged with the Court of Session in Edinburgh but has yet to be formally accepted.”
On 13th February 2007 the BBC reported, under the headline “Newspaper’s Tommy appeal date set”:-
“A date has been set for the News of the World’s appeal hearing to overturn a £200,000 damages award for calling Tommy Sheridan MSP “a swinger. Two weeks in December have been pencilled into the Court of Session’s diary for appeal judges to hear the Sunday tabloid’s demand for a re-trial.
“Roisin Higgins, counsel for the Sunday tabloid’s publishers said legal argument about a re-trial was expected to start on 4 December and is expected to last for two weeks.“
Then, on 25th September 2007, the BBC, under the headline “Sheridan court appeal put on hold” reported:-
“A News of the World appeal against Tommy Sheridan’s libel victory against the paper has been put on hold. The newspaper is seeking to overturn the verdict, after being ordered to pay Mr Sheridan £200,000. Judges agreed that the proceedings should be suspended at a hearing at the Court of Session in Edinburgh. The decision means the case will now be suspended until the Crown inquiry into perjury allegations resulting from the case is resolved.”
So, from all of that, it appears that (a) an appeal was lodged (b) a date for hearing the appeal was set and (c) the court sat to decide to delay the appeal till after the perjury inquiry!
Either Mr Sheridan has a novel legal argument to the effect that the appeal was not properly lodged, which seems highly unlikely in light of the proceedings following it, or the Scotsman has simply repeated what someone has told it, without any check as to the credibility or reliability of the information.
If there had been no appeal, Mr Sheridan would hold a valid decree and his lawyers would instruct Sheriff Officers to take enforcement action against NI. But the lodging of an appeal prevents a decree being issued, so he has, so far, nothing to enforce.
The Scotsman article today also states:-
“News International, which has been dogged by allegations of phone-hacking, pledged to appeal against the damages award in the immediate aftermath of Sheridan’s conviction in Glasgow last December.”
But, as we have seen, the appeal was lodged in August 2006, long before the guilty verdict.
What Is The Correct Position?
As far as I can see here is where the case stands. The appeal was “sisted” (suspended) pending the criminal case. Once that has been resolved, it is open to either party to ask the court to “recall the sist” and put the appeal back on the court lists.
On the basis that the lodging of the appeal stopped NI having to pay Mr Sheridan, on one view they really have no incentive to get the appeal running soon, although excessive delay in doing so could result in the appeal being thrown out.
But Mr Sheridan’s option, if he wants to pursue the matter is simple. He can, either directly, or through his lawyers, ask the court to recall the sist. Such a motion would undoubtedly be granted and the case would be back on the rails.
If Mr Sheridan desires representation at his civil appeal and cannot find lawyers to represent him on a “no-win, no fee” basis, then the costs of him opposing the NI appeal will be high and funds would need to be raised for that. That however is not the story the Scotsman has elected to print.
Conclusion
As seems so common these days the press are not able, for reasons of resources I imagine, to address the legal issues in case thoroughly. The Scotsman at this point in the court proceedings (or indeed at ant time) would be unlikely to want to print a 5,000 word article on the likely outcome of the NI appeal (though such an article should be appearing on this very blog soon!). That is understandable and excusable.
What is far less so is when an article is published which, whilst about the law, is factually incorrect, and which, within seconds, can be shown to be so.
The problem is that most of the public get their knowledge of the law and the courts from the media. Where what they are being told is wrong, then the prospects of sensible and informed debate about the many legal issues which affect our daily lives are greatly reduced.
Click here for David Allen Green's explanation of what "Bad Law" Is
Random Thoughts Re Scots Law by Paul McConville 