Speech in Stage One debate (to see subtitles, switch them on in icon below vide)

9 minute read.

The Defamation and Malicious Publication (Scotland) Bill was debated at Stage One in the Scottish Parliament on Thursday. I was given 3 minutes to speak and I used them to articulate my concerns about the serious harm threshold. The text of my speech is appended at the foot of this blog.

This blog is designed as a stimulus to further discussion and debate over the serious harm test set out in the Bill. It will be followed by a further blog exploring some of the possible options to amend the Bill. Feel free to comment below or send your views directly to myself. Before proceeding, however, I should make a few things clear.

Firstly, I supported Scottish PEN and others who have been campaigning for a serious harm test but I write this as a lawmaker and not a campaigner and I want to get this right.

Secondly, the proposal for such a threshold was adopted early on in the Scottish Law Commission’s work on the Bill and has become an established part of the evolving proposals. Now that the Bill is in the process of becoming law, we need as a matter of principle to properly evaluate the arguments for and against and stress test the provisions as set out in the Bill.

Thirdly, my speech appended below is a speech is thus rhetorical in style. It was in part designed to ensure that the opposing view to the general consensus was given an airing on the public record in Parliament before the detailed Stage 2 amending process. I should add that the one other MSP who spoke and expressed reservations about the proposed test was Annabelle Ewing MSP who was a Minister responsible for civil law until June 20128.

The Bill creates a statutory definition of defamation but then states that in order to be actionable the harm has to be serious.

The Defamation Act 2013 in England and Wales, by contrast, defines defamation as causing serious harm to ones reputation and this by exertion, only serious harms can be pursued.

We need further debate on the three key questions which form a logical progression of consideration.

Should there be a statutory threshold for initiating legal action for defamation?

My view is that yes, there should be a threshold. Currently anyone can initiate legal action for alleged defamation and the allegations are presumed to be defamatory. Whether they are in fact depends (in contested cases) on an evidential hearing (a proof) to establish whether in fact the statement complained of was ever made and in what context, whether the statement bears the meaning alleged by the pursuer, whether it carries a defamatory imputation and whether there are any defences available to the defender.

The purpose of a threshold is to filter our frivolous, vexatious or malicious actions and give some measure of confidence to those who receive legal letters threatening action as to what tests will need to be met before an action can proceed.

In setting any threshold, one needs to be mindful of the need to ensure that it is not set too high and does not exclude those with legitimate complaints who feel that they have been defamed and wish redress. On the other hand it should not be set so low as to have no practical effect.

2. If there should be, what should that threshold be?

This is a critical question. There should in my view be a threshold but if we are going to define defamation as a statement that causes harm to someone’s reputation then is that not a sufficient threshold to be demonstrated at an evidential hearing before a full proof can take place?

3. If there should be, how should such provisions be framed in law?

Should such a threshold be incorporated into the definition as in England and Wales or should the threshold for actionability be separate from the definition? Should the kind of procedure to asses whether such a threshold has been met be left to the rules of procedure for civil cases to determine or should there be some statutory provision? Should there be statutory criteria for assessing whether the threshold has been met or should it be left to the Courts to determine in each case depending on the facts and circumstances?

The written and oral evidence from a number of witnesses during Stage Ione reflected on some of this questions in a broad sense as the debater at Stage One is focused on general principles. However, in my view we need further debate on both the principles in some more details and how the law is framed as we head to Stage 2.


Thank you Presiding Officer – I want to focus my remarks on the serious harm threshold because it is a significant change.

It exists of course in England and Wales in section 1(1) which states that
(1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

The Bill before us, by stark contrast does not follow that straightforward formulation but instead defines a statement as defamatory if it causes harm but then in addition states that for it to be actionable that harm must be serious. In that respect I disagree with Adam Tomkins that Scots law is being brought into line with England and Wales and I’ll return to that.

Following the Supreme Court ruling in Lachaux, liability in defamation cannot be established by reference to inherent tendency of the words alone but has to have regard to the facts and circumstances.

And thus the Court will need to hear evidence on whether the alleged words written or spoken were indeed ever written or spoken, whether they bear the meaning alleged by the pursuer, and the reasons why, if defamatory, serious harm is or is likely to be caused

And that does requires an evidential hearing and thus there will need to be significant procedural rule changes to Scottish civil procedure to accommodate any pre proof evidential hearing.

I have four arguments against the serious harm test as

First, as matter of principle, we should not be shutting down civil law remedies for people without good reason. Someone for example who is defamed but only suffers harm is now to be denied redress as is someone who suffers repeated harms over perhaps a long period of time but where the threshold may never be met by any one instance.

Secondly, as a caution to those who think this may act as some kind of procedural hurdle – this will involve evidential hearing and associated expense.

In my recent £750,000 action I would still have been in Court for 6 days trying to thrash out whether in fact serious harm had ever been caused to the pursuer.

Thirdly, a serious harm threshold will not deter a litigant determined to damage someone. That’s what happened with me. It took a full proof to conclude that no harm at all had been caused and no financial loss had accrued to the pursuer.

And finally but very importantly, let us ponder what Parliament is being invited to do. Section 1(4)(a) states that a statement about a person is defamatory if it causes harm to their reputation. Incidentally this was not in the draft Scottish Law Commission Bill and the Scottish Government has never published an analysis of responses it got to its own consultaiton. But any such statement is only actionable if the harm is serious.

Presiding Officer, We are defining a civil wrong in statute then saying there nothing you can do about it. We are now seeking to deny civil justice to our constituents whose reputation has been harmed.

Is this even compatible with Article 6 of the ECHR?

Presiding Officer The threshold does little for defenders as full proof will still be required.

The threshold on the other hand does a lot for pursuers but in a wholly negative way and without any justification. This Bill risks denying legitimate pursuers their human right to a civil remedy for a wrong that we are defining as harm but about which they can do nothing unless they can prove that it is serious.


I have just realised that I have never posted the good news about my defamation case here on my own website so here is it for the record.

I won!

Lord Clark ruled comprehensivelty in my favour in an Opinion published on 11 March 2020. This was just as coronavirus was taking over all of our lives and so I forgot completely to provide an update on my website although I did contact all the donors to my crowdfunder with the good news (though apologies I may have omitted to contact a number of people who donated by post).

The case (Wildcat Haven Enterprises CIC vs. Andy Wightman A111/17) was heard by Lord Clark at the Court of Session from 29 October 2019 – 8 November 2019. The Closed Record (the written argumets b y pursuer and defender) can be read here (2Mb pdf). Lord Clark rejected all of the pleas of the pursuer in what was a comprehensive victory for me. As a matter of law therefore neither of these two blogs are defamatory. The Pursuer issued a statement to the media on 11 March stating that “we will certainly appeal the decision”. However, the 28 day period in which to appeal has now expired and no appeal has been lodged. The original blogs are thus back online here and here.

What was revealed of this case in Lord Clark’s decision was a fraction of what was revealed in Court. What was revealed in Court was a fraction of the evidence assembled in the 1494 Productions (written documents lodged as evidence) lodged in the Court (59 by the Pursuer and 1435 by Defender). And what was revealed in the Productions was a fraction of what I have learned in the course of extensive preparatory research over the past 3 years about the activities of Highland Titles and Wildcat Haven Enterprises CIC. I will be publishing a detailed blog revealing what really went on over the past three years. Given the litigous nature of both parties, I will, of course, have these blogs legalled before publication.



30. October 2019 · Comments Off on Defamation 8 · Categories: Announcements, Defamation, Legal affairs

The case of Wildcat Haven Enterprises CIC vs Andy Wightman has been running in Court 6 at the Court of Session before Lord Clark, presiding.The case opened on Tuesday 29 October.

As a defender I am unable to comment on proceedings thus far. The BBC carried a brief report on the first day’s proceedings.

The Times has carried a report on Day 1 and on Day 2.

For those interested, I am now able to publish the Closed Record (the pleadings of pursuer and answers from defender) as it is now a court document and in the public domain.

Download a copy here (2Mb pdf)

I will likely be examined on Friday 1 November. The Court is open to the public. All welcome. The Court normally sits 1000 – 1600 with a break for lunch.

16. May 2019 · Comments Off on Defamation 7 Crowdfunder · Categories: Announcements, Defamation, Legal affairs

On 21 March 2017 I was served with a summons by Wildcat Haven Enterprises CIC. It is a defamation action in which the pursuer is claiming £750,000 damages (plus 8% annual interest). The action relates to two blogs I wrote In September 2015 and February 2016.

The case will be heard in the Court of Session over 8 days commencing 29 October 2019. The judicial costs (the time spent in court) have been estimated by a Judicial Accountant at £120,000. In addition, there are other legal costs incurred in preparing the case. These are estimated to be in the region of a further £60,000. I raised £54,000 of these in a previous crowdfunder. Further costs that I am meeting personally include research and travel costs associated with gathering evidence across the UK and in the Channel Islands.

I am thus launching what I hope will be a final crowdfunder to cover my judicial costs of £120,000.

Unlike other defamation actions where the content of the alleged defamatory material is well publicised, I need to conceal the blogs in question and cannot publish the detailed allegations until they are entered in court proceedings.

Please therefore note the following before deciding whether to donate.

1. Neither you nor I can know what the result of this case will be. I am confident that I have not defamed the pursuer but the Court has been asked to determine that. Before you donate therefore, be aware that you cannot form an informed view on the likelihood of success.

2. If I am successful in defending this case, I should be able to secure the recovery of most of my legal expenses. The pursuer has deposited £120,000 in the Court to cover this eventuality. In this event, I will reimburse all those who have contributed to my defence fund in proportion to what each party (including myself) has contributed. Thus, if I am successful, you can be assured that you will receive some of your donation back. I have appointed a Chartered Accountant to conduct an independent audit of my costs. An audited statement to 13 May 2018 is available here.

3. Funds raised in this crowdfunder shall be used solely for my legal expenses in the case. If I lose the case and damages are awarded to my pursuer, I shall be personally liable for those. If those damages are substantial, I may have no option but to declare myself bankrupt and be disqualified from serving as an MSP.

Finally, there are a lot of very deserving causes out there. I am launching this crowdfunder because some people have offered to help and for that I am very grateful. So please do consider carefully whether you wish to support this appeal or not.

Thank you to everyone who has provided generous support over the past two years.

If you are willing to donate, please proceed to the crowdfunder page.

02. July 2018 · Comments Off on Defamation 6 · Categories: Announcements, Defamation, Legal affairs

On 20 March 2017, I was served with a summons by Wildcat Haven Enterprises CIC claiming that I had defamed them and seeking damages of £750,000 (now £810,000 with 8% interest). The allegations relate to two blogs I published in September 2015 and February 2016. See previous blogs for further details. I deny all the allegations made against me.

I am extremely grateful to all those who donated to the crowdfunder I launched in April 2017. I have now had the income and expenditure audited and a Statement is available here (with signature redacted). Of a total of £59,153.71 raised, I incurred costs to 13 May 2018 of £30,871.62 leaving a current surplus of £28,282.09.

An 8 day trial has been scheduled for 15-18 October and 22-25 October 2019. Estimated costs to defend myself are in the region of £100,000 – £150,000 and I plan to launch a further crowdfunder in Spring 2019.


20. March 2018 · Comments Off on Defamation 5 · Categories: Announcements, Defamation, Legal affairs

One year ago, on 20 March 2017, I was served with a summons by Wildcat Haven Enterprises CIC claiming that I had defamed them and seeking damages of £750,000 (now £810,000 with 8% interest) . The allegations relate to two blogs I published in September 2015 and February 2016.

For the past year, the pursuer and myself have been adjusting the pleadings and the defence. This process is now complete and a date for a hearing will hopefully be agreed by the Court of Session soon though the date itself may well be a year or more away.

Wildcat Haven Enterprises CIC claims that statements that I made in the two blogs are defamatory. I do not accept that they are. I cannot divulge the nature of those statements or the specific complaint being made since, to do so, would be to risk repeating the alleged defamation. The contents of the 28 page closed record of pleadings and answers will be available once the proof is underway.

The estimated duration of the hearing is 8 days. I will need around £120,000 to defend myself and will be launching a second crowdfunder at the beginning of May.

I am very grateful indeed to all those who donated to the first crowdfunder launched on 19 April 2017. In early May I will publish an audit of the accounts.

Finally, the Scottish Law Commission has published a Report and Draft Bill on defamation law. Reform is urgently needed and the Scottish Government has the opportunity to commit to bring forward legislation in the Programme for Government to be announced in September 2018. If no such plans are announced, I will consider bringing forward the SLC’s draft bill as a proposed members bill.

Previous updates on the case can be found here.


03. May 2017 · Comments Off on Defamation 4 · Categories: Announcements, Defamation, Legal affairs

Thank you to all who have donated to my crowdfunder. I have just worked out how to download donor details and will be emailing you all directly within the next few days.

It is now evidence that these proceedings are highly likely to proceed to a proof before the Court of Session lasting around 8 days. Accordingly, the costs are now estimated in the region of £150,000. If I win, I can anticipate recouping around 60% of this (£90,000). If I lose (even on a very minor defamation), I will be due to pay all of these costs plus very possibly those of the pursuer. In that latter event I will certainly be bankrupt.

I am setting a stretch target of £50,000 for the remainder of this crowdfunder (until min-June) and will then probably launch another one later in 2017. My defences have to be lodged by Friday 5 May. I will publish further updates as maters proceed.

The crowdfunder together with an explanation of what the funds are to be sued for can be found at www.crowdfunder.co.uk/awdefamation

21. April 2017 · Comments Off on Defamation 3 · Categories: Announcements, Defamation, Legal affairs

Latest News.

At 5.30pm on Wednesday 19th April 2017 I launched a Crowdfunder campaign to raise an initial sum of £10,000 to help cover legal expenses to be incurred if my pursuer decides to call the defamation action outlined in its summons of 21 March. Within 24 hours, I had achieved my target and earlier this evening (20 April), the funds raised stood at over £23,000. I am extremely grateful to all those who have contributed.

Earlier today, I also received notice that the case had been called in the Court of Session. It is on the Court Rolls and court proceedings are now underway. I continue to deny the allegations and will be defending the action.

Previous posts on this topic can be read by clicking on the <Defamation> Category of this blog.

21. March 2017 · Comments Off on Defamation 2 · Categories: Announcements, Defamation, Legal affairs

Today I was served with a Summons from legal agents acting on behalf of Wildcat Haven Enterprises CIC to appear in the Court of Session seeking interdict on a charge of defamation and claiming £750,000 damages (plus 8% interest from date of citation).

In light of the fact that defending this action will be very expensive, I will be launching a crowd-funder shortly to seek assistance with meeting the likely costs.

I will be meeting with my legal advisers as soon as I can and will be making no further comment until then.

For legal reasons, no comments are being allowed.

23. February 2017 · Comments Off on Defamation · Categories: Announcements, Defamation, Legal affairs

In October 2016 I received a letter from a law firm alleging defamation in relation to two blogs written by me and published on this website.

I am publishing this blog in order to:-

  1. provide an update to a wide range of individuals and organisations who have been in touch since this case became public in early December 2016.
  2. draw to the attention of a wider public the issues around the current state of defamation law in Scotland

The Timeline

On 31 October 2016 I received a letter from Burness Paull LLP (BP) alleging that I had published two blogs that were “grossly defamatory” of its client. It alleged that the blogs were “littered with false and defamatory comments” and “for the sake of brevity”, the letter listed six examples.

That client is Wildcat Haven Enterprises CIC (hereafter abbreviated to WHE).

WHE sought “a full and unequivocal retraction and apology” and was advised by BP that it is entitled to “substantial compensation from you for the damage caused directly by the blogs”. I was informed that WHE “estimates its losses to be in the region of £750,000” and that WHE would also require payment by myself of all of its legal costs.

The letter informed me that that, if I did not provide a “satisfactory reply” by 14 November 2016 our instructions are to issue a summons”

On 10 November 2016, I responded to this letter through my solicitor denying the claims of alleged defamation.

On 30 November 2016, BP replied and disputed my denials and intimated that its instructions were “now to proceed with a summons”.

My solicitor responded to this correspondence with further detail  on 14 December 2016.

On 15 December 2016, BP wrote to my solicitors to intimate that they had instructed a QC and were sending papers to him that day.

As of today, 24 February 2017, no Summons has been received by my solicitor.

Scottish Green Party Conjoined

Burns Paull LLP has also issued a legal letter on behalf of WHE to the Scottish Green Party intimating that it will also be conjoined in an action for allegedly communicating the defamation via a hyperlink on its website.

Defamation Law

The significance of today’s date is that, were these allegations to be made against me under English law, I would now be free since, a pursuer has one year in which to raise an action. The law in England and Wales was modernised by the Defamation Act 2013.

The law on defamation in Scotland is under review by the Scottish Law Commission and Scottish PEN are campaigning for reform. See also the UK wide Libel Reform Campaign.

Consequences for an MSP

In the event that an MSP becomes personally insolvent (through, for example, losing a £750,000 defamation case) and sequestration is awarded to the debtor, the MSP is disqualified from being a member of the Scottish Parliament under Sections 15 and 17 of the Scotland Act 1998 read with Section 427 of the Insolvency Act 1986. During a period of 6 months following sequestration, an MSP may not participate in proceedings of the Parliament. This disqualification ends in the event that that award of sequestration is recalled or reduced. If the award remains after 6 months (ie the MSP still owes the sum awarded but cannot pay and remains insolvent) then the MSP loses their seat and a vacancy arises.

My total assets are nowhere near £750,000.

I am saying nothing further on the matter for the moment and for legal reasons this blog is closed to comments.

Please also note that anyone repeating the alleged defamation through social media is liable to being pursued for the same alleged defamation.