TALES FROM THE APIL CONFERENCE 2: SOCIAL MEDIA NORTH OF THE BORDER: “HE WAS ONE OF A GROUP OF MEN SIMILARLY DRESSED EXCEPT FOR THE TARTAN OF THEIR KILT”
This year sees the first APIL President from Scotland, Gordon Dalyell. As soon as I sent out the previous post on social media a a Scottish Sheriff, Sheriff Cubie, sent me an example of the use of social media in the Scottish courts. Involving as it does both Facebook and traditional Scottish dress, it is one way to mark the universality of some issues in personal injury litigation.
“He denied being a close associate of the defender but they were sufficiently well known to each other for him to have participated in the male guest outfit colour co-ordination scheme for the defender’s wedding.”
YOU ARE ALL DRESSED THE SAME…
In PA -v-RK  SC FOR 6 there was an issue as to whether an accident was staged. An important element of the trial was whether, and how well, the parties knew each other.
CROSS-EXAMINATION OF THE PURSUER (CLAIMANT)
“In cross on behalf of the party minuter, he accepted that on 9 September 2014 he had told Dr. Ian Kerss of the Alba Clinic, Dundee that he had had several back operations and that he had not actually worked as a roofer for more than 10 years. He was sure that he had not met the defender before the night in question. He was given a warning by the court at this stage. After that he appeared to be less sure that he had not previously met the defender. He was sure that he had not been at the defender’s wedding in about April 2014. When he was told that the party minuter had online photographs showing him at the defender’s wedding, he asked to see them. I allowed a short adjournment to allow the pursuer to reflect on his position. When the court resumed I reminded him of the earlier warning I had given him. At this point the party minuter was granted leave to lodge a fresh production, number 6/4 of process, for use in cross examination. The pursuer accepted that he was in the two photographs of guests at what appears to be a formal event that are reproduced in that production. He then vaguely remembered having attended a wedding with his girlfriend. He was one of a group of men similarly dressed except for the tartan of their kilt. Despite this he did not accept that he was part of a group even though he was one of seven adults in similar garb. He did not know the groom very well and he did not know many people at the wedding. He recalled that the bride was a friend of his girlfriend. It was a pure coincidence that the groom happened to be the defender in this case. He had had no idea whose wedding it was, as his partner had invited him to accompany her.”
CROSS-EXAMINATION OF THE DEFENDANT
 He did not know the other driver. He had not met him before. He did not recollect his having been a guest at his wedding. His wedding had taken place in about April 2014. There were about 150 guests. He had not known most of the guests. He had spent most of the time with a small number of his family who had travelled from England for the wedding. The rest of the guests were friends and “friends of friends”. His wife is Scottish. When pressed he conceded that the pursuer’s partner is a friend of his wife. He had only met her in passing a few times. He did not recall whether he had met her before the wedding. He did not know her boyfriend (the pursuer) before the wedding. The suggestion was made that he had made up the story of the alleged accident in league with the pursuer. At this point I warned him that he did not require to answer a question that might involve him in admitting a criminal offence. He acknowledged that it might look like this had happened, but he denied it. He did not recollect having spoken to the pursuer before the crash.
 In cross examination, he denied that there had been a groom’s party at the wedding. He had had a number of conversations with the pursuer since the accident, perhaps three in number. They had met from time to time at a local gym that they both frequented. These had been short conversations with no substantive content relating to the accident claim. When shown number 6/4 of process he confirmed that on about 20 April 2014 he had posted nine new photographs of his wedding including those that were reproduced in this production. The pursuer’s partner is a friend of his wife. Around April 2014, this was a casual friendship. He disagreed with the suggestion that he had known the pursuer quite well before the date of the alleged accident.
 He accepted that he had had the pursuer’s phone number stored in the contacts list of his mobile phone. He had deleted the entry for the pursuer from the contacts list that morning, i.e. just prior to being called to give evidence and after his arrival at court. He explained that he had done so to distance himself from the whole matter. When asked why he had decided to delete the pursuer’s entry from his contacts list, he confirmed that he had understood the question but he declined to answer it citing my warning to him that he did not require to answer a question that might lead to his self-incrimination. He denied having spoken to the pursuer on the morning of the proof in the court house, by phone or by text. There had been only a few texts between them prior to the date of proof which were concerned with having been given a date for the proof.
Because I like the defendant’s submissions so much I am including them here.
The party minuters’ [defendant’s] counsel provided a written submission prepared after the first day of evidence. This is with the process and I will not repeat its terms here. He supplemented this with brief oral submissions which focused mainly on the evidence of Mr. Bathgate which was heard on the second day of the proof. He described the pursuer and defender as “Runyonesque” characters. In his response to the pursuer’s counsel’s submissions, he referred to an observation of the eighteenth century Italian economist Abbe (Ferdinando) Galliani (1728-1787):“la ricchezza e una ragione tra due persone”. Attention had been drawn recently to this maxim by the author John Lanchester, in his work “How To Speak Money ” (2014), who used a translation of this observation as “richness is a ratio between two people”. The maxim is about the idea that the idea of having plenty of money is not an inherent state, nor an absolute one. Both the pursuer and the defender had told out and out lies to get money. The conspiracy between them had broken down in the course of the proof. In the end, the defender had tried to distance himself from the potential consequences by saying as little as possible in the witness box.
THE SHERIFF’S CONCLUSIONS
“It is a strange circumstance in this case that each of the pursuer and defender initially strongly denied ever having met the other. The party minuters point to a Facebook posting which shows pictures posted by the defender after his wedding. He accepts that he posted them. These photographs caused both the pursuer and the defender separately to admit in the witness box that they knew each other prior to the date of the alleged accident.”
“The pursuer’s evidence was very problematic in a number of respects. Initially he denied even knowing the defender, as discussed in the preceding paragraph. He claimed that he had only attended the wedding along with his partner who knew the bride. Eventually he came to accept that two of the posted photographs showed him at the defender’s wedding only some four months prior to date of the “accident”. He was one of a group of male guests dressed in formal traditional Scottish clothing. One Facebook photograph showed the Pursuer and other men dressed in kilts and each wearing a black shirt and white tie of similar style. He denied being a close associate of the defender but they were sufficiently well known to each other for him to have participated in the male guest outfit colour co-ordination scheme for the defender’s wedding.”
The pursuer lost.