Aristocrat wins appeal over allegedly defamatory newspaper article

A millionaire businessman who claimed that a newspaper article defamed him has successfully challenged a judge’s decision that the story was incapable of bearing the defamatory innuendo alleged.

Nigel Cayzer, the nephew and executor of the late Sir James Cayzer, for whom he had previously been authorised to act under a power of attorney and guardianship order, argued that an article published by the Sunday Times which was headed “Aristocrat’s friends driven to despair” and contained the strapline “Classic car sale ignored the late Sir James Cayzer’s dying wish” was defamatory of him.

The Lord Ordinary held that the article, when read as a whole, was not capable of bearing the defamatory imputations attributed to it, but appeal judges in the Inner House of the Court of Session ruled that the Lord Ordinary “erred in law” in reaching that conclusion.

Lady Dorrian, Lord Malcolm and Lord McGhie heard that the article, published on 2 December 2012, referred to what was understood to have been Sir James’ wishes for the disposal of his fleet of vintage cars in the event that his family did not want them.

It stated that a friend had raised concerns over the welfare of the deceased a year before his death, that Tayside police had been alerted and included quotations from various sources.

The pursuer argued that the defamatory aspects of the article were that he had acted in a manner that was “improper” in the administration of Sir James’s affairs following his death and “in breach of his obligations as executor”; that he did so by selling certain valuable motor cars contrary to the wishes of Sir James who wished them to be gifted to the City of Glasgow Transport Museum, “in furtherance to his own personal interests” in preference to those of Sir James and the general public.

He added that the article failed to make clear that the cars were sold prior to the death, and that the reasonable reader would conclude that “the sale of the vehicles was following the death of the late Sir James and in a manner that ignored his testamentary and philanthropic intention”.

The pursuer submitted that having regard to the article as a whole, it was defamatory in the manner contended for, as the implication was that he was guilty of “impropriety” or “moral turpitude”.

However, Times Newspapers argued that the language of the article complained was incapable of bearing the defamatory innuendo contended for as there were “no allegations of impropriety or wrongful behaviour”.

While there were statements to the effect that the pursuer had exercised his power as executor in a way inconsistent with what appeared to be the testator’s wishes, it was expressly stated in the article that there was “no law against failing to comply with requests made in a will”.

It was submitted that the highest one could infer was that the pursuer had acted in a way which upset friends of the testator because his property had not been disposed of in a manner he would have wished after his death.

When the matter came before the Lord Ordinary for discussion on the procedure roll, parties were agreed that before the case could proceed to inquiry the court had to be satisfied that the words complained of were capable of bearing the defamatory meaning ascribed to them.

The judge observed that if it were a reasonable interpretation of the article that it carried an imputation of impropriety in the administration of the estate against the testator’s wishes and to the benefit of the pursuer, that “would plainly amount to a potential defamation which would entitled the pursuer to proof”, but he concluded that the article was not capable of bearing such an imputation.

On appeal, the reclaimer submitted that in founding upon the reference that there was “no law against” failing to comply with a testator’s wishes the Lord Ordinary appeared to have been considering the well‑established principle of “bane and antidote”, but in doing so he “wrongly applied that principle”.

By apparently concluding that the antidote met the bane, the Lord Ordinary ignored the contention that the reclaimer did not rely on an imputation that he had committed a criminal act: rather his position was that the defamatory innuendo was one of moral turpitude, which is not removed by the observation that such actings are not against the law.

It was also argued that the Lord Ordinary “erred in his assessment of the tone of the article”, the upset of friends being only an adjunct to the implication of wrongdoing.

The appeal judges came to conclusion that in placing such emphasis on the words indicating that there had been no breach of the law, the Lord Ordinary “misdirected himself as to the overall tenor of the article”.

Delivering the opinion of the court, Lady Dorrian said: “In our view the Lord Ordinary was in error in concluding that the article could not bear the imputations alleged. He placed too much emphasis on the statement that the actions complained of were not unlawful rather than consider the wider question as to whether the terms of the article as a whole might bear the imputations alleged.

“The majority of people are likely to feel that an executor is honour-bound to carry out the testamentary wishes of the deceased, and that failing to do so, other than where impossible, is liable, to use the well-recognised if rather old-fashioned phrase, to lower him in the esteem of right thinking members of society.”

She continued: “It is a reasonable inference from the article that some of the vehicles were sold after Sir James’ death, contrary to his wishes, and that the reclaimer, as executor, was responsible for arranging the sale, and as beneficiary, would gain therefrom.”

Lady Dorrian added: “We have therefor reached the conclusion that the Lord Ordinary erred in law in concluding that the article was not capable of bearing the defamatory imputations alleged. In the circumstances, he should not have sustained the respondents’ first plea in law, but should have reserved that plea pending a proof before answer.

“We will therefore recall the interlocutor of the Lord Ordinary, in so far as it sustains the defender’s first plea-in-law and dismisses the action, and allow a proof before answer on that plea.”