McKellar v. MacKinnon [2004] ScotCS 28 (06 February 2004)

McKellar v. MacKinnon [2004] ScotCS 28 (06 February 2004)

The first defender was not permitted to re-introduce the issue of absolute privilege at the appeal stage because the plea had been repelled earlier, not appealed, and the parties had formally agreed that qualified privilege applied. Allowing the issue to be raised now would be unjust and prejudicial to the pursuer, who conducted the proof on the basis of qualified privilege.

Citation
[2004] ScotCS 28
Parties
Pursuer and Respondent: H. Aiden McKellar; First Defender and Appellant: Michael MacKinnon
Jurisdiction
Scotland
Judgment Date
06 February 2004
Procedural Posture
Appeal / Appeal From Sheriff Principal to Inner House, Court of Session
Outcome
appeal refused; interlocutor of sheriff principal adhered to
Legal Topics
Qualified Privilege, Absolute Privilege, Malice, Defamatory Statements, School Disciplinary Proceedings
Defamation Education Law Qualified Privilege Absolute Privilege Malice Defamatory Statements School Disciplinary Proceedings

Case Brief

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Parties

H. Aiden McKellar

Pursuer and Respondent

Michael MacKinnon

First Defender and Appellant

Procedural Posture

Appeal / Appeal From Sheriff Principal to Inner House, Court of Session

Legal Issues

  1. 1 Whether the statements made by the defenders were protected by absolute privilege or only by qualified privilege
  2. 2 Whether the issue of absolute privilege could be re-introduced at the appeal stage after being previously repelled and not appealed
  3. 3 Whether malice was established in the context of qualified privilege

Ratio Decidendi

The first defender was not permitted to re-introduce the issue of absolute privilege at the appeal stage because the plea had been repelled earlier, not appealed, and the parties had formally agreed that qualified privilege applied. Allowing the issue to be raised now would be unjust and prejudicial to the pursuer, who conducted the proof on the basis of qualified privilege.

Court Disposition

appeal refused; interlocutor of sheriff principal adhered to

Orders

  • Appeal refused
  • Interlocutor of sheriff principal dated 10 February 2003 adhered to