Stewart WhiteWhat happens when adults fall out and one insults the other in a childish manner? Well, nothing usually, but unfortunately in one recent incident litigation ensued and Sheriff Kenneth McGowan was tasked with the sorting out the dispute in Dunfermline Sheriff Court in the case of Cowan –v- Bennet

The action was for Defamation after a falling out between Mr Bennet and Mr Cowan who were formerly friends.  Once discord had been reached, Mark Bennet a local printer in Fife, continually referred to George Cowan, a local Painter and Decorator also from Fife as “The gay painter”.  He brought the action because he claimed that this defamatory statement met the test, that it lowered Mr Cowan’s reputation in the eyes of right thinking members of society. Mr Cowan was heterosexual so the defence of Veritas could not be relied upon. However, Sheriff McGowan kicked the case into touch on two counts; he considered that the Defender, Mr Bennet, was a “gregarious” individual who indulged in banter with many people he met and considered that no right thinking member of society would think that Mr Cowan would be homosexual by virtue of the comments from Mr Bennet. He also affirmed that allegations of homosexuality, in 2012 are no longer defamatory, stating that homosexuals were widely protected by the law and many people these days, are openly homosexual.

Mr Cowan claimed that people would no longer use his painting business if they thought he was gay. However, the Sheriff’s view was that these prejudiced people were not right thinking members of society.

While it is difficult to give an exact distinction between what is defamation and what is not, I consider this judgement to be a good one; albeit not trivial for the Pursuer it’s certainly the thinnest end of the wedge at which fatter end sits Lord McAlpine who has just settled his defamation case with the embattled BBC for £185,000. In that case there may be more to follow due to the repetition rule, which states that it’s not a defence to say that you were merely repeating what you were told. One can’t repeat a defamatory statement with impunity. The Twitterati beware!