11/21/2005

A Correspondence With A Reader

(Note - attached is the slightly edited text of an e-mail I sent last night to Tim Luckhurst, a newpaper columnist and former editor of 'The Scotsman.' Under the law of Scotland, a 'delict' is a tort; and I'm getting rusty in my old age, because there are no 'defendants' in Scottish civil procedure, only 'defenders'. It's my e-mail, and I can post it if I like - privacy of communication was not asked for or granted at any stage. It's being posted as it relates to the removal of material from the blog; and given its nature, I have disabled the 'comments' box for this post ).
Mr. Luckhurst,

I refer to our previous correspondences from November 18 onwards, two of which were entitled 'Libel' and one 'Courtesy'.

A reasonable summation of these is that on November 18, you forwarded an e-mail to me entitled 'Libel', which merely asked who my solicitors were. I replied with those details. I have only ever written one post about an article of yours. The post was entitled 'Luckhurst Ponderously Ponders Racism in Scotland', and was published on my weblog 'The G-Gnome Rides Out' (http://www.theggnomeridesout.blogspot.com/) on November 6 2005. It was a critique of an article that you had published that day in the 'Sunday Times', entitled 'Welcome to Scotland, where racism lives on'(http://www.timesonline.co.uk/article/0,,2090-1857408_1,00.html) and I presume that your comment referred to this post.

You then forwarded me another e-mail, which to quote in full, read 'Um...You appear not to have instructed them...". I replied advising that at that stage personal correspondence between us should cease; that you should contact your own solicitors; that if you wished to do so a claim could be intimated against me by the use of the public e-mail address listed on my above weblog; that thereafter I would seek legal advice; and reminding you that 'libel' is a word with a very specific legal meaning, not to be used lightly.

You then forwarded me an e-mail which was addressed 'Dear Mr. Kelly', and which suggested that I 'save me and yourself the trouble and expense by removing the article from the website'. I replied to you that your suggestion would require reflection on the balance between my right to publish material on my weblog critical of what you had written with your rights under the law of libel; that you had not actually advised me of how the alleged libel had been constituted, despite your use of this very specific word in two separate communications; reminding you that the mere suggestion of libel does not constitute libel...; but that I always try to correct those errors which I have made, and am open to correction if my readers can produce information showing I am wrong.

I then advised I would revert to you.

Libel is a delict under the law of Scotland, and thus not constituted until either a court finds it to be proven in fact and in law or a defendant makes an admission of liability. You have used the word 'libel' in communications to me without giving me any indication of how I am alleged to have libelled you.

Accordingly absolutely no admission of libel is made. Indeed, one would have thought that your use of such a word, with its very specific legal meaning, in such a context is nothing short of careless unless you give me some indication of how you have been libelled.

It is sincerely to be hoped that your failure to give any indication of how the delict is alleged to have occurred was not motivated by a desire to use the word 'libel' as a form of threat.

However, if you were to proceed to action the process of defending it would be costly and tortuous; and although confident of vindication should you have proceeded I can think of better ways of spending my time than hanging around courtrooms - been there, done that. Therefore, without admission of liability, the post 'Luckhurst Ponderously Ponders Racism in Scotland' of November 6 has been removed from the above named weblog.

M.E.Kelly, LL.B., Dip.L.P.,
Solicitor in Scotland 1992-1999

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