Lord Clark dismisses defamation action by two directors of football club against ex-director

About this case:

• Citation:
  [2025] CSOH 46
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Clark

James Gillespie and Mark Macmillan alleged that comments made by Alan Wardrop while he was seeking election to the board of the St Mirren Independent Supporters’ Association were defamatory and had damaged their reputation. The defender maintained that neither statement was actionable, either due to the defences of honest belief or public interest, or a lack of evidenced reputational damage.

The case was heard by Lord Clark in the Outer House of the Court of Session.  Pugh KC appeared for the pursuer and the Dean of Faculty, Dunlop KC, and Breen, advocate, for the defender.

‘Huge cover-up’

In February 2020, a charity named Kibble Education and Care Centre, which the pursuers were involved with, became a 27.5 per cent shareholder in St Mirren. As a consequence, the pursuers were appointed to the club’s board of directors and remained directors at the time of the action. The defender became a director in 2016 and remained in that post until November 2022. For many years Kibble had sought to build a Wellbeing Centre to develop a new model of care and support for vulnerable young people, intended to be somewhere in Renfrewshire.

In May 2023, the defender sought election to the board of SMISA, which held 51 per cent of shares in the club. As part of his campaign, on 1 May 2023 the defender made a statement, which was published online, in which he said that Kibble planned to build on St Mirren owned land and the pursuers failed to disclose this to the other directors. A second statement was made that month to The Herald newspaper in which he said that he had been “made out to be a liar” by Kibble and the board of SMFC and that there had been a “huge cover-up”.

For the pursuers it was submitted that there was no plan, secret or otherwise, to build the Wellbeing Centre on SMFC land. The defender’s statements plainly suggested that they had acted in conflict of interest by failing to disclose such a plan and had perpetrated a cover-up and then lied about it. As the only persons involved with both Kibble and SMFC, it was clear the statements included them.

Senior counsel for the defender submitted that the evidence, including a reference in the business plan for the Wellbeing Centre to opportunities predicated on Kibble’s purchase of SMFC shares, illustrated that the opportunity to develop SMFC land was a critical factor in Kibble’s decision to invest in the club. The reasonable reader would understand the campaign statement to have been made in the context of a dispute between the pursuers and the defender regarding the ongoing governance of SMFC. The quote in the Herald did not name either pursuer, and there was no evidence of reputational damage.

Viewed in context

In his decision, Lord Clark said of the general credibility of the parties as witnesses: “I am not persuaded that any aspect of the evidence of the pursuers or the defender, on the matters of specific relevance to the alleged defamation, falls to be treated as not credible or substantially unreliable. This is not a case in which one side was telling lies in the evidence put before the court. The court is left with the need to have regard to all of their evidence when determining whether there was defamation.”

Considering whether there was a plan by the pursuers to build on SMFC land, he added: “The SMFC land was plainly not big enough for what Kibble had in mind, when the requirement was 4 hectares and it was just a little over 1 hectare in size. The first draft of [Kibble’s] Stage 1 application refers to developing 1.15 hectares of unused land opposite SMFC, which is closer to the scale of the SMFC land. However, as things developed it became clear that a larger area was needed, and 4 hectares was mentioned in the round 9 Stage 1 application. The defender argues that this larger area could include the SMFC land, which is a possibility, but there is no real evidence of seeking to acquire an area of land owned by more than one party.”

Turning to the defences of public interest and honest belief, Lord Clark said: “The nature and gravity of the allegations do not stray beyond what [the defender] felt able to infer from the information he had. There are certain steps, identified on behalf of the pursuers, which he did not take to verify his belief. It is true that, if asked, they may have provided fuller information about the more detailed issue of having no plan to build on the SMFC land, but it had already been said that there was no conflict of interest. It is apparent that, viewed in the whole context of what had occurred, the defender could, objectively, believe that his statement was in the public interest.”

He concluded: “Based upon the true facts, it is clear that an honest person could hold the opinion that the pursuers covered up, denied and lied. When one has regard to the whole of the evidence that is not the true position, but it is a conclusion that could fairly have been reached by an honest person. It has been established that the evidence upon which [the defender’s] expression of opinion relied on were facts which existed at the time the statement was published, as well as what was asserted to be a fact in a privileged statement made available before, and things that the defender reasonably believed to be a fact at the time the statement was published.”

Decree of absolvitor was therefore granted in favour of the defender.