Currently, one of our more unusual cases is that of Danny Wilson who has raised an action for damages for defamation against the City of Edinburgh Council.
There was a hearing in the Court of Session on 29th January 2015 which was continued until 27th March 2015. Thereafter, the court will issue a written judgement. We would hope to know the outcome by early summer.
Back in 2004, Danny and his partner attended hospital for fertility treatment. This was going well but, one day, the consultant took Danny to one side and advised him that it would have to cease.
The consultant went on to explain that he had received a report from the Social Work Department of the City of Edinburgh Council to the effect that Danny had served a life sentence for murder. This was completely untrue. Danny had not received a prison sentence throughout his life for anything.
Danny presumed that someone had maliciously provided the Social Work Department with this erroneous information and they had then incorporated it into their report without checking the facts. Accordingly, he instructed us to proceed with an action for defamation against the Council for all the damage and suffering this allegation had caused, including the substantial injury to his mental health.
We had to advise Danny that there was, however, one initial hurdle. Like most of us, he did not have sufficient money to fund a long and complicated court action and, accordingly, he required the benefit of Legal Aid. But, back then, it was virtually impossible to obtain Legal Aid for an action of Defamation. Danny then instructed us to challenge the Legal Aid rules on the grounds that they were in breach of the Human Rights Act 1998. Under this Act, everyone is entitled to a fair trial. How could a case be fair when one side could not afford to pursue it?
As a result of this challenge, the Scottish Government relaxed the Legal Aid rules and Danny became the first ever person in Scotland to obtain Legal Aid to pursue an action for Defamation.
At the hearing in January, City of Edinburgh Council argued that they had what is called "privilege" in that they provided the information in the course of a formal process. They further argued that, because they had "privilege", Danny could only win the case if he could prove that they were acting with "malice".
This could be a very important case for Scots Law. Danny has already made legal history once. He may go on to be one of the few individuals to make it twice.