Defamation- 5 differences between Scotland and England

One question that arises regularly from both Scottish and English lawyers is whether defamation law is the same in both jurisdictions. To a great extent, it is. The law in Scotland is mainly based on the common law although it is affected by statutory provisions. The shortage of judicially decided cases has resulted in Scotland looking to English decisions for guidance.  Here is a brief overview of 5 of the most important differences between England and Scotland.

1. Legislation

In England, the Defamation Act 2013 restated in a statutory form many of the most important principles of Defamation law. In Scotland, the 2013 Act has little applicability. Most importantly, there is no serious harm threshold for a Pursuer/Claimant to negotiate in Scotland.

2. Fair comment

In England section 3 of the 2013 Act abolished the common law defence of fair comment and replaced it with a new defence of honest opinion. In Scotland, the fair comment defence remains as enshrined in the case of Archer v Ritchie & Co going back to 1891.

3. Limitation Period

In Scotland, an action for defamation or verbal injury can be brought within a period of three years after the date of publication. For an example of a case where the Claimant was time-barred in England but successfully pursued in Scotland (in which Campbell Deane of BKF represented the Pursuer) see Kennedy v Aldington

http://www.scotcourts.gov.uk/search-judgments/judgment?id=c0968aa6-8980-69d2-b500-ff0000d74aa7

4. Damages and Expenses.

There is a general misconception that damages awarded by Scottish courts in defamation cases are dramatically less than their English counterparts. Whilst punitive damages are not available in Scotland, Scottish judges find comparison with awards in personal injuries cases unhelpful. The expenses incurred are however considerably less than in England.

5. Conditional Fee Arrangements.

CFA’s are not available in Scotland. There is however a long-standing tradition of speculative actions, involving the principle of “no win, no fee”.

The Scottish Law Commission is presently consulting on reviewing the Law of Defamation in Scotland.  Campbell Deane, Head of BKF’s media law department sits on the Scottish Law Commission’s Advisory Group.

For a more detailed analysis of the differences between Scotland and England in defamation law, see Carter Ruck on Libel and Privacy Sixth Edition pp1319- 1323. The section was authored by Campbell Deane of BKF.