A prominent Scottish defamation lawyer has warned that proposals to align Scotland’s defamation laws with England and Wales could “lead to the death of defamation litigation in Scotland”.
Campbell Deane, partner at Bannatyne Kirkwood Frame & Co (BKF), told The Herald that some of the proposals in the Scottish Law Commission’s draft defamation bill “make perfect sense”.
However, he said the introduction of a ‘serious harm’ test – already in place in England and Wales – would put Scotland at a disadvantage.
Mr Deane said: “To harmonise the jurisdictions and bring into play that we have exactly the same test as England, which has now had four years of running those arguments, we are now four years behind them.
“Apart from saying come here because we are cheap as chips, there’s now no argument to come to Scotland.
“England has conditional fee arrangements and higher awards so it would be bordering on professional negligence if a client comes in and says where should I sue and you don’t say go to England.
“It will lead to the death of defamation litigation in Scotland. It will just die.”
Duncan Hamilton, advocate at Arnot Manderson Advocates, added: “I don’t see how having a pretty much off-the-shelf adoption of what is in place south of the Border is necessarily something that’s going to lead to the development of Scots law or greater economic development.
“The serious-harm test was introduced in England because there were too many frivolous defamation cases – as a means of sifting out the cases they put in the serious-harm test.
“In Scotland we have exactly the opposite problem – we have too few cases.
“It seems almost the reverse of what devolution was designed to achieve: Scottish solutions to Scottish problems.
“There are aspects that the commission and the Government in due course will want to assess in terms of whether it’s right for Scotland.”