The Defamation Directions - DW v Scottish Ministers  CSOH 151
17 November 2009
Until 2007 civil legal aid was not available in Scotland for defamation actions. But in 2006, the European Court of Human Rights found in favour of two activists, after a case had been brought against them by MacDonalds for defamation arising out of leaflets they had been distributing. Civil legal aid had not been available to the activists to defend what turned out to be the longest running defamation case in the history of English law. That was found to be a breach of human rights. Scots law was then amended to make it compliant with Convention rights. In general terms, proceedings wholly or partly connected with defamation or verbal injury remained excluded from civil legal aid under the relevant schedule to the Legal Aid (Scotland) Act 1986. But Section 14 was amended to say that civil legal aid might be granted in defamation actions, provided reasonableness and probable cause criteria were met, financial limits were satisfied, and conditions in Directions to be issued by the Scottish Ministers were met. The Scottish Ministers duly issued Directions. The conditions in the Directions are not easy for petitioners to satisfy.
DW v Scottish Ministers  CSOH 151 is a judicial review action challenging the Directions. The petitioner and his partner had applied for IVF treatment on the NHS. City of Edinburgh Council disclosed information held on their files about the petitioner to the relevant NHS Trust. The petitioner was then refused IVF treatment on the NHS. The petitioner claimed he had been defamed by the disclosure by City of Edinburgh Council, and that the Council had acted negligently and in breach of his human rights. He applied for legal aid to bring the action. His application for legal aid was refused. It was refused both on grounds of reasonableness and failure to satisfy the Directions.
The petitioner challenged the Directions as ultra vires on the basis they were contrary to the intention of the enabling provision, were irrational, and contrary to human rights. A first hearing was restricted to the Scottish Ministers' arguments that the petition should be refused because it was academic, and the petitioner had failed to exhaust alternative remedies.
Lord Wheatley upheld both of the Scottish Ministers' arguments and dismissed the petition. In relation to the argument that the petition was academic, because legal aid had been refused not just because of the terms of the Directions, but also due to lack of reasonableness, there was no live issue relating to the Directions. He also found that it was not the sort of exceptional case that would justify the court hearing it even though it was academic. It did not a discrete point of statutory construction, and it was not a situation in which there were multiple other cases dependent on the outcome. On the alternative remedies argument, the court accepted that the petitioner had to look at the essence or substance of what the petitioner sought, which was not legal aid but compensation. He had failed to exhaust all available compensatory remedies. The fact that he had complained to the Ombudsman without success did not absolve him from the requirement to exhaust alternative remedies.
Anna Poole of Axiom Advocates acted for the Scottish Ministers.
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