A small piece of legal history took place at the Court of Session Inner House on Tuesday, when a panel of judges led by Lord Carloway sat in 'virtual session' to hear an appeal against the verdict in a 2019 defamation case.
The appellant, Stuart Campbell, had failed to convince Sheriff Nigel Ross at Edinburgh last year that Kezia Dugdale had defamed him in an article published originally on 7 March 2017. Mr Campbell had sought £25,000 in damages; instead Sheriff Ross decided against him, and that he should pay Ms Dugdale's costs, plus an uplift of 50%.
The Lord President Lord Carloway, his fellow judges Lords Menzies and Brodie, the Clerk to the court and two QCs all took part in Tuesday's appeal without sharing the same room. Instead, the hearing took place in the form of a webinar, which was also open to journalists on a secure link.
The case has a deeply political context. Mr Campbell is the 'Rev Stu' Campbell, who runs the pro-independence blog Wings Over Scotland
, crowd-funded since before the 2014 referendum and popular among certain nationalists. The defendant, Ms Dugdale, had been the leader of the Labour Party in Scotland when she wrote about Wings Over Scotland
in what was then a regular column in the Daily Record
. Her defence had originally been funded by the party, until the newspaper took over responsibility before last year's trial.
The case centred on a tweet posted by Mr Campbell during the Conservative Party conference, which said that Conservative MSP Oliver Mundell 'is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner'. The MSP's father, David Mundell MP, had recently come out as a gay man. Ms Dugdale read the tweet as homophobic. She criticised Campbell in her column, stating that people who hold homophobic views should not be accepted into Scottish political debate.
Mr Campbell had claimed that his comment had nothing to do with homosexuality, but had been provoked by Mr Mundell junior's speech to a party conference. He wants the appeal court to overturn the sheriff's conclusion that Ms Dugdale's comments had constituted 'fair comment', a common defence under Scots law. He believes the court should find in his favour, awarding him compensation and cancelling the decision on costs.
His QC, Craig Sandison, told the appeal panel that Ms Dugdale's Daily Record
column may have been presented as a commentary, but he insisted that the comments within it should be based upon fact. By presenting 'homophobia' as fact in this case, she should have backed it up with some form of evidence. Instead, she simply stated that he was homophobic and then commented on that assertion, insisted Mr Sandison.
He told the court that Ms Dugdale's assertion had not been fair. He said there was evidence both from the Wings Over Scotland
blog and its related Twitter account to show that Mr Campbell was not homophobic. The Twitter post at the centre of the case was an example of a joke, about wishing someone had not been born, rather than a jibe about homosexuality. Mr Sandison told the panel that Mr Campbell had an abrasive writing style and that he could be 'very rude', but that did not mean that he was incapable of having his feelings hurt.
Roddy Dunlop, QC for Ms Dugdale, rejected the appellant's claims about fairness and the basis of her criticism of Wings Over Scotland
and Mr Campbell. Her column had made it clear she was writing an opinion. The tweet in question was firmly in the public domain and had received widespread public commentary before Ms Dugdale contributed her view. She had no more duty to back up her comments with facts than would a theatre or restaurant critic, argued Mr Dunlop. 'When Mr Campbell decided to deride Oliver Mundell by focusing on his father's sexuality, he left himself open to commentary that doing so was homophobic,' he added.
Mr Dunlop asserted that Mr Campbell is a man who 'lives and dies' by freedom of expression and who spends time online 'belittling and deriding anyone who disagrees with his world view'. The QC added: 'Yet the first time someone does stand up to him, his first thought is to sue'.
The appeal court hearing lasted just over three hours. A written judgement will follow. Lord Carloway said: 'The technology worked well from the Court's perspective and the hearing captured the ambience of a physical courtroom. The judiciary fully support the promotion of virtual cases where it is technologically possible and appropriate in the current situation'.
Scottish Court and Tribunals Service (SCTS) officials are planning for several civil cases to be heard virtually, as a solution at least during the coronavirus lockdown. One of the participants, Craig Sandison QC, commented: 'I was delighted to be able to appear virtually at this hearing, which is an important step towards restoring some approximation of normality to the operation of the judicial system in Scotland. After a few minutes, the cut and thrust of the argument took over from the unusual situation and it became really very like an ordinary hearing'.
Roddy Dunlop QC praised the Scottish Courts and Tribunals Service, adding: 'The only difficulty was at my end – when a laptop crashed – and SCTS were able to have things back up and running in minutes. In these challenging times, it is essential to keep justice moving, and it was hugely gratifying to see the way that all rose to the challenge'.