JUDGMENT SUMMARIES

Background

This case was raised within the Commercial Court at Glasgow Sheriff Court.  The case was decided by Sheriff John N. McCormick.

In brief, on 31 July 2019 the Billy Graham Evangelistic Association hired the SSE Hydro Arena from Scottish Event Campus Limited for an event to be known as the “Franklin Graham Event” on 30 May 2020.  This was to be the opening date for a UK tour organised by the pursuer at which Franklin Graham would speak. 

It was accepted that Franklin Graham is a contentious American evangelist, son of the late Billy Graham.

The pursuer claimed that the defender had discriminated against the pursuer by terminating the agreement on the basis of a protected characteristic in terms of the Equality Act 2010, namely, religion and philosophical belief.

The case

The case deals with cornerstone rights and freedoms – religion and philosophical belief - within a pluralist society. Both the pursuer and the defender are substantial institutions having international profiles.

The judgment includes a preface (paragraphs [2] to [5] ) within which Sheriff McCormick seeks to avoid misunderstanding and explains that the 2010 Act applies to all; that the defender conceded that the event was to be a Christian Evangelical outreach event and that the court does not adjudicate on the validity of religious beliefs.

Here the religion is Christianity based on an interpretation of the Bible. It may be an interpretation with which others disagree, but that is irrelevant.

The event was to be an unticketed free Christian evangelical outreach event for over 12,000 people. The intended audience was the general public – whether holding religious beliefs or not and irrespective of sexuality.

Between November 2019 and January 2020 both parties became aware of growing opposition to the tour.  This protest included social media, an online petition and some mainstream press coverage.    

Protesters claimed that Mr Graham might use the event to air controversial views on a variety of subjects.  This was not the defender’s position at proof.  At proof it was accepted that the event planned for 30 May 2020 would have been a lawful Christian evangelical outreach event.

On 27 January 2020 Franklin Graham issued a Facebook post explaining the purpose and inviting members of the LGBTQ+ community to the event.

Following a board meeting on 29 January 2020 the defender terminated the agreement with the pursuer (para [198])

At proof the defender maintained that the contract was terminated solely due to concerns regarding the possibility of protest outside and inside the venue.  While security issues and possible protest were discussed at the board meeting on 29 January 2020, the court found that these were not the sole or even the main reason for the event being cancelled. 

The defender’s board minutes disclosed that, for example, the board discussed what might be said at the event and “we have to be careful of being judge and jury if the law hasn’t been broken” and “the nature around the event is darker” – finding in fact (23)

The court held that in terms of the Equality Act 2010 a protected characteristic (here: religion and philosophical belief) must have nothing to do with the defender’s decision to terminate the agreement, otherwise the court must find in favour of the pursuer.

There is no business case defence to discrimination. The court found that the defender was under pressure to cancel from its principal shareholder (Glasgow City Council); that the defender was concerned that artists might refuse to play at the venue and its sponsor considered that the event was not compatible with its values.

Glasgow City Council’s representatives on the board made its position clear at the board meeting on 29 January.  After the meeting Glasgow City Council wrote to the board asking for the event to be cancelled (a copy of the letter is quoted at paragraph [181]).

On the same day the defender wrote to the pursuer cancelling the agreement (paragraph [198]).

The basis now claimed for cancelling the event (security and protest) did not feature in the in the letter from Glasgow City Council and, more importantly, not in termination letter issued by the defender to the pursuer.

In particular, the letter from Glasgow City Council included: “Glasgow is well known as a city which is friendly to all people, but particularly including from the LGBTQ and Muslim communities.  I do not want to send a message to those communities that the Council prepared to welcome any person who has the potential to make such comments”.  In court the defender accepted that the event was to be a Christian evangelical outreach event. 

At paragraph [188] the court found that lawful opinions based here on religious or philosophical belief (whether mainstream or not) are not to be preferred one over the other.  All are protected.

Although issues of security and protest were considered by the defender’s board on 29 January, those were not the sole or main reason why the event was cancelled.  In terminating the agreement the defender made no reference to issues of security or protest.

When issuing press releases the defender also made no reference to issues of security or protest.

Opinion of the court

The court found (at finding in fact (37)) that by terminating the agreement the defender directly discriminated against the pursuer in that it treated the pursuer less favourably than it would have treated others.  It did so because of a protected characteristic, namely, the religious or philosophical beliefs of the pursuer and Franklin Graham.  It acted under pressure from others including its shareholder, its sponsor and for commercial considerations.

Aspects of the 2010 Act and, in particular, the remedies available to a court had not been litigated previously in Scotland.

The court considered the various remedies available to a court in Scotland.  The first remedy was one of declaratory.  The defender accepted that if a breach of a protected characteristic had been established, then there could be no objection to a declaratory.  The court made such a declaration. 

The pursuer had sought a rescheduling of the event.  Four other venues on the tour arranged for 2020 had been rescheduled.  The court held that this was an appropriate remedy in this case but, for the reasons outlined at paragraphs [232] – [234] a court-ordered rescheduling would not be feasible in this particular case.  At paragraph [238] the court expresses its opinion in forthright terms.

The pursuer had also sought an apology.  At [245] the court concluded that a court-ordered apology (over and above the declarator) would be forced, of little value and insincere.

In relation to damages, the court observed that in Scotland damages are compensatory, not penal.  The 2010 Act did not provide for aggravated damages in Scotland. 

Other jurisdictions have greater flexibility in relation to remedies so as to encourage compliance with the Act. 

The pursuer had sought damages from the defender for expenses incurred throughout 2020.  The court found that this was excessive and that, for the reasons given at paragraph [265] the pursuer should have realised by 30 June 2020 at the latest that the event would not have been rescheduled.  The court was critical of some of the items included in the defender’s schedule of losses.  The court awarded damages to the extent of £97,325.32.

At paragraph [285] the court made certain observations as to whether, in this particular case, the remedy fits the wrong.

The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.