Thursday 30 July 2020

Why am I suing the National Trust for Scotland?

What is the case about?

This is a straightforward case of defamation against the National Trust for Scotland.

The National Trust for Scotland issued statements to the press that directly and indirectly implied that I had "gained illegal entry" (ie broken into) Craigievar Castle and had been shooting nudes around areas visited by children.

These statements were entirely false and the impact these statements had, as the story went worldwide, was devastating for my business, my personal reputation and my mental health.

The NTS were successful in preventing the case being heard in the English Courts, forcing me to face the prohibitive cost of taking the action through the Scottish Courts, presumably in the hope that I would give up but they should never be able to do this to anyone else and they should be held accountable for the damage they have done.

Why did they defame me?

In September 2012, I organised an artistic nude photoshoot at Craigievar Castle, which is managed by the NTS. I had contacted them about using the castle because I was aware that they had sanctioned in writing a similar nude photoshoot at Leith Hall in April 2008. I knew this because the model and makeup artist on that shoot had worked with me the day before and the model was staying at my house. When the photographer picked them both up, I had spoken to him about the shoot and he had explained how he wrote to the NTS and was given written permission for the shoot for a fee of £60 on the grounds that he was an amateur photographer and the images were not for commercial publication.

My shoot was arranged over the telephone because it was short notice and as it was a commercial shoot, the fees were considerably higher. Initially the Picture Librarian (the person within NTS senior management with ultimate responsibility for what images can be created on or of NTS managed properties) asked a lot of questions about the shoot; how many people would be involved, the levels of nudity and the intended market for the images. I was then quoted £500 for two hours. When I apologised and said I may have wasted their time, as that was outside my budget, he asked my what my budget was and I said the most I could afford was £200. He replied that the shoot could go ahead for £200. I then asked him to email me any paperwork that needed completed and I would get it back to him before the shoot. He said that wouldn't be necessary, just to deal with the custodian appointed to supervise the shoot. I had a brief moment of thinking: "Am I being set up for plausible deniability here?", so I said: "I will be paying by business cheque, as this is a commercial contract. I hope that's ok?" and he said that was fine. This allayed my fears, as that meant a paper trail would exist and I asked how I should make the cheque out. "Make it out to National Trust for Scotland" was the reply.

On the day of the shoot, the custodian asked the same questions that the Picture Librarian had asked, in virtually the same order. It seemed to me that she had been briefed on what to ask, possibly to ensure that my answers were the same before allowing the shoot to go ahead. She showed us around, opened blinds to let daylight in, as we had been specifically asked not to use flash (I could cover the folly of that in a whole new blog post) and said we could touch or move anything, so long as we put it back when we were finished. Throughout the shoot we all found it amusing that she would disappear and then magically reappear each time the model got dressed. It was clear that we were being carefully supervised on CCTV.

I grabbed this snapshot of Karen and Rachelle as we waited for the appointed custodian to let us in.

Around late 2015 or early 2016, the daughter of the family who had handed Craigievar Castle to the NTS spotted some of the images on a print-to-order art website and contacted the NTS. The donor families have considerable clout with the NTS and it may have come as a shock when she started asking questions about the shoot. When they failed to respond to her, she contacted a journalist who was a family friend and he contacted the NTS. This was when things began to go completely pear shaped.

What was my situation prior to this defamation?

In February 2016 I was well on my way to my retirement plan. Karen had a good management job with a large company, as well as helping me with the business. Financially I was virtually debt free, with only a small amount still outstanding on my mortgage and no overdraft or credit card debt. Our retirement plan was to sell our place in Aberdeen and buy a small B&B in the north highlands and split our time between there and running bespoke photographic and safari adventures in Kenya. We had been visiting Kenya regularly and had built up a lot of local knowledge, contacts and tracking skills. On our February 2016 trip, I had also picked up the last of the textbooks needed to finish my study for the Kenyan Professional Safari Guide Certificates. We had already taken photographers we knew on some of our trips and the feedback we had was excellent, so we knew we were heading in the right direction. Our aim was that in 2022 we would be ready to put the plan into action, retire to the Highlands and offer bespoke safaris and model events in Kenya.
My photography workshops were not intended to be a major part of the business until retirement. They were the fun bit, where I got to share my passion for photography with others. If they made profit, great but I had been happy to break even or lose a little on them. They were also an investment in the future, as they demonstrated the kind of experience people would have once we started the retirement plan.

Immediate Effects of being defamed

The first we knew about any issue was when my mobile phone rang at midnight in a Nairobi hotel. The images had been up on sale on Fine Art America and other print to order sites, as well as being displayed on photography portfolio sites and my own website, since they were taken in 2012. I could not believe what the journalist told me, as he explained what the NTS were saying. He was also pretty shocked to hear that they had not even contacted me before labelling me a criminal deviant, as they had claimed to have carried out a thorough investigation, which should surely have involved speaking to me.

I came home to a veritable shit-storm of press activity and the stories went worldwide. The first major impact of the furore was when Karen's employer told her that she would be sacked for bringing the company name into disrepute if any of the stories in the press mentioned her employer by name. A week after the initial story broke, the Scottish Mail On Sunday did a follow-up and approached the NTS with some of the facts and asked for comment. All they received was the same false statements that had been issued previously.

Most self-employed people, especially those in freelance photography, will know that work is very rarely regular and you can go months between contracts. You live off your savings in the quiet times and network and make contacts until the next job comes in, so the negative impacts on the business did not become fully apparent immediately. Initially I saw a drop in bookings for the workshops and there were no emails or "touch base" calls coming in from regular clients. I also found that people were not returning my calls and emails. In April 2016 a meeting that had been scheduled the week before I left for Kenya was cancelled at an hour's notice with no explanation. In the same month I attended an informal lunch for one of the local business networking groups and people literally turned their backs on me. By July 2016 I had used up a chunk of my savings and there was still no sign of work coming in. Even the small contracts with subcontracting agencies were not coming in. There was nothing happening and no matter what I did, it didn't seem to make a difference. I was starting to worry about where things were heading and about going into debt when I had worked so hard to become debt free and it was very concerning.

Having someone say to me on hearing my name: "Oh you're that guy who broke into that castle, we couldn't possibly work with you" was devastating. It hit home to me just how damaging these stories had been. That was the point that my confidence in my ability to pitch for work was destroyed. Even four years later I still get people ask me about Craigievar Castle when they hear my name!

Should I have persevered and continued trying to network? Absolutely but the impact of several months of nothing happening the way it should, people constantly bringing up Craigievar, people turning their backs and making clear I was a pariah plus the concern over my deteriorating financial situation made me anxious and depressed and that in turn affected my ability to stay a purely rational course.

I sat down to try to figure out a way out of the decline and every path I took led me to the same conclusion: with these false allegations hanging over me, I was going to be hamstrung for a long time; so I decided to contact a lawyer and see if it would be possible to force the NTS to retract and apologise. I quickly found that there are only a handful of lawyers in Scotland who actually deal with defamation cases because there have been very few cases heard in Scottish Courts (only just over a dozen since 1945, I believe!). Those lawyers who do handle defamation in Scotland can obviously charge a premium. I found one firm with an office in Edinburgh that dealt with defamation cases on a no-win-no-fee basis but when I called, they said they only do this in England but said they would get a solicitor to call me to discuss the case and see if there was a possibility of taking the case through the Courts in England instead, as the model was from England and I had a lot of business through English companies. They said it was a very strong case and recommended taking it through the English Courts. They also, after examining my accounts, recommended I make a damages claim for £50,000 to cover loss of business (actual and future), loss of goodwill, personal distress etc.

Under normal circumstances, defamation damages can only be claimed in courts outside the primary territory where damage occurred for the damages relevant to that territory but the EU has a regulation known as the "Brussels Recast", which states that damages occurring in any EU territory can be claimed in full in any EU territory where some of the damages occurred and it specifically prevents the use of a "forum non conveniens" defence (ie: there is a more appropriate place for this case to be heard). They suggested that this made it possible to deal with all the European damages in one court in England.

I should point out, as most lay people have a perception that lawyers just make things up to make themselves money, that in order to take this case forward on a no-win-no-fee basis, the lawyer has to have a case that will convince the lawyers of the insurers against their costs and the lawyers of the insurers against me being charged opponents' costs that there is a greater than 60% chance of success before they can get the insurance cover to allow the case to progress in England.

As it turned out, this was to be the first time that the Brussels Recast was going to be properly tested in relation to cases that could be heard in either Scotland or England. The High Court and subsequently the Appeal Court in England ruled that the case should be heard in Scotland. We sought leave to have the Supreme Court review the decision but that was denied, leaving the only option to have the case heard in Scotland.

Initial Responses From NTS

In response to the initial letter from my solicitor in 2016, the NTS indicated that they intended to claim "qualified privilege". This is a loophole in defamation law that allows Government bodies and large charitable trusts to claim immunity from defamation claims if they inadvertently libel someone in the course of providing information to the public. However, when it was pointed out to them that deliberately releasing false information to defame someone is not an accident, they quickly dropped that idea.

In February 2017, the action was lodged in the High Court in London, just before the one year time bar in England came into force. Over several months there was to-ing and fro-ing and in mid 2017, as part of an attempt at arbitration, a teleconference was held between my lawyer, their lawyer, someone who I think was their Head of Communications and myself. At one point I was asked to describe the impacts of the defamation on me, my family and my business. My lawyer then asked me what was the value of turnover generated by my business in the 12 months prior to the defamation. Then he asked what was the value of turnover generated in the 12 months after. When I answered you could almost hear the blood draining from their faces over the phone. There was about five or six seconds of silence, then fumbling and muttering and the teleconference was quickly ended.

Starting to struggle

By February 2017 my savings were gone and I had started to slide into debt. I had looked in late 2016 at how I could diversify the business but every time I though of a direction, the hurdle of what the public's perception of me would be reared its ugly head. All confidence in my ability to sell my services to clients had been destroyed. I felt hopeless and helpless and began sinking into a deep depression. Every day since has been a struggle between getting out of bed and just ending it.

I decided that I had to try to push the workshops more, figuring that photographers wanting to expand their knowledge and experience of model photography was one group least likely to be influenced by the adverse publicity. Consequently, I planned an increase in the number of such events for 2017 and 2018. Unfortunately, the available pool of keen amateur photographers in an area like Aberdeenshire is very limited and all I succeeded in doing was attracting the same number of photographers, spread over many more events and I lost even more money. 

I also started looking for a part-time job to try to at least bring some money in to arrest the decline in to more and more debt. However, being over 50 and having been self-employed for so long did not make me a good prospective employee and it took until August 2017 before I managed to find a part-time job as a night porter in an hotel. It was enough money to cover my business insurance, business phone line and web hosting.

At the hearing in the High Court in London for the NTS claim of forum non conveniens, there was a freelance reporter and press photographer, so once again I was all over the news. Almost immediately I got an email from one of the small freelance agencies that had dropped me like a hot potato 18 months earlier. It read "Would you be willing to work with us again?". I thought at last this might be the turning point and it brought a brief relief from the darkness. Maybe people realising that I am serious about clearing my name would make them reconsider working with me. In 2018 I did some work for them worth £192 and shortly afterwards received a notification from receivers that they had gone into receivership. That turned out to be the sum total of my commercial photography turnover for the year. To cut costs I also had to cancel my membership of the business networking groups, which had been costing me almost as much as the part time job paid me every month. People were no longer shunning me but neither were they discussing potential opportunities with me and I could no longer afford to keep throwing money at these events.

From bad to worse ~ why I need help to take this forward

In the Spring of 2018, we heard that the Appeal Court in England had upheld the Earlier verdict of the High Court that the case should be heard in the Scottish Courts. My English solicitor and barrister advised asking the Supreme Court to consider examining the case and brought in one of the people who had actually drafted the Brussels Recast Regulations. His advice was that there was only a 50% chance that the Supreme Court would agree to review the case but that if they did, he was fairly confident they would overturn the decision. In the end they decided not to review the case.

In the meantime, we were looking at what we could do with the business and decided to try holding an additional high value event like our Art Nude in the Landscape, to see if that was the direction we should go. A lot of the feedback we had from our events mentioned that it was the whole experience that made the events special to people, so we re-branded the workshops as "Photographic Experiences". We organised our first Autumn Beauty event for the October and it sold out quicker than any other workshop. We actually made a profit on it of a couple of hundred pounds. It wasn't much but it was a start. We had also remortgaged the house at the end of 2017 to consolidate the debt that had built up over the last year and to reduce our monthly outgoings.

Just before we left for Glen Affric for the Autumn Beauty Experience, Karen received notification that she was being put on notice of possible redundancy and in December 2018 she was made redundant. We had spent 2018 working on bringing forward our plans for safaris and model events in Kenya and had arranged to take a stand at the Photography Show in March 2019 to market these. Now we faced the prospect that if that failed and Karen was still out of work, we could end up losing our home.

Five days before the Photography Show, Karen was involved in a road accident. Fortunately she was not injured but our vehicle was written off, so we had to find another £1,000 to hire a Transit van to take our stand displays etc to Birmingham for the week. We set up our stand and were very pleased with how it looked. The work we had put in on planning a comprehensive collection of events had paid off and we knew we had good products to offer. We weren't expecting anything from the Friday but the Saturday is usually the busiest day and we were confident of doing some good trade on the Saturday. However, on the Saturday morning we awoke to discover that our hired van, with around £1,000 worth of personal and business items inside, had been stolen from the hotel car park. We were shocked by the casual approach of the hotel, with a "oh yeah, there are always a few vans stolen at the weekend". 

I had to spend half the day dealing with the Police and the van hire company and the anxiety on the stand must have been evident to anyone visiting. We didn't make a single sale during the entire show.

Being over 50 and highly qualified, Karen found it extremely difficult to get another job, as employers either considered her over qualified or too old (one interviewer actually said to her "You're over 50 now; how much longer are you planning on working?" and at another interview a senior partner in the firm walked into the interview room, picked up her CV, said: "Jesus you're more qualified than me!" and walked out).

I managed to increase my hours at the hotel slightly but it was still nowhere near enough. Karen received jobseekers allowance for three months and then got moved to Universal Credit. However, Universal Credit treats you as a couple, so I had to attend interviews as well, even though I had a part time job and a business to run. Then came the real kick in the nuts. If you have a part time job and a small business and that business is making as much of a loss as your part time job pays, it doesn't matter to Universal Credit. Make a penny profit on the business and it counts as income. Make a few hundred or more loss and it only counts as zero income. They don't consider your losses against your employed income. You can guess where that led! Having paid into the system for almost forty years, we were "entitled" to the square root of fuck all.

It took until July 2019 for Karen to get a new job on minimum wage and it came just as we finished the 3 month mortgage holiday we had arranged. I also got my first commercial photography job since the beginning of the previous year. I received a fee of £1500. That is the last commercial photography job I have had so far.

In September 2019 I managed to get my hours at the hotel increased to what most people consider full time, although I am used to working 70-80 hour weeks, so it is still part time to me. Finally we were able to cover the bills and stop ourselves sinking even deeper into debt. We even managed to replace the old banger we had been driving but the worst was still to come.

In late October 2019, Karen was diagnosed with breast cancer. We got home from the hospital on the day she was diagnosed to find our dog had collapsed and he died the next day. Karen was off for treatment and only received statutory sick pay and we had vet and cremation bills for Tsavo. We had to borrow from family and friends to get by. That was the darkest time for both of us and, not for the first time since this started, suicide was looking like the best option.
Then came covid-19 and if that is not enough, Karen is now being made redundant again!

The Scottish solicitors I have are very confident of success but their accounts department is requesting payment of some of the costs so far and I am not able to afford anything like as much as they want, which is why I launched the crowdfunding campaign. I really don't want to find myself without representation just as the case is coming to a head and end up snatching defeat from the jaws of victory.
All I am asking is for people to share the page, so that anyone who thinks it is something worth helping with knows about it and if you are able to pledge some assistance we would be very grateful.

The pledges will only be taken if the campaign reaches the primary target of £2,000 by August 19th, otherwise they will be cancelled and we will be back to square one, so please share as much as possible.