Defamation and lawburrows
Our thanks to Mr James Duff, who has brought to our attention a judgment of Sheriff George Jamieson dated 5 August 2010, sitting in Dumfries, and holding Mr Duff's action of lawburrows against the Chief Constable of Dumfries and Galloway (in which the former represented himself) to be irrelevant when it was based upon claims of defamation made by the pursuer against the defender.
The case follows on from earlier decisions, one of which is noted here in Scots Law News. But Sheriff Jamieson's decision is not based upon a view that lawburrows can only be taken out against threats of physical violence. He concludes, following the opinion he had already expressed in footnote 73 of chapter 5 in his learned work on Summary Applications and Suspensions, that Stair, applying a liberal interpretive approach to the Lawburrows Act 1581, was to the opposite effect, and that Erskine's contrary view was based only on the fact that there was no direct authority or practice on the point. Stair's position, also supported by Professor Walker in his Civil Remedies (1974), gains further weight from the much wider modern understanding of "assault" as going beyond the merely physical invasion of another person. Sheriff Jamieson rejects an argument that when the opinions of two institutional writers conflict the court is bound by neither, preferring an approach of taking the view more consistent with modern understandings of social need. While previous case law on lawburrows did not go so far, neither did it reject or even consider the possibility.
Sheriff Jamieson dismisses Mr Duff's action, however, on the basis that his pleadings referred only to possibly defamatory statements made by police officers some time in the past, with no grounds shown for apprehension that such statements would recur in the future. He also upheld arguments about the limited nature of the Chief Constable's vicarious liability for the actions of his officers, and rejected human rights arguments that Mr Duff's actions should at least go to proof.
Sheriff Jamieson's long and interesting note has not yet appeared on the Scottish Courts website. It is to be hoped that it will soon do so.