Timothy Martin McManus, Glynis McManus, Anthony Frederick McManus and GT's Recollections Ltd v Victoria Beckham (4 July 2002, Court of Appeal)
Child
abuse review team were malicious; nursery nurses vindicated
Lillie and Reed v Newcastle City Council
and others (30 July 2002, Eady J)
Court
forces Burmese democracy protester to accept £10k damages
James Mawdsley v Guardian Newspapers Ltd
(29 July 2002, Morland J)
Jury
determines "meaning" only in Trial and Error libel claim
David Gregson v Channel Four Television Corporation
(4 July 2002, Court of Appeal)
Media organisations refuse to be put under the influence
of Stella Artois
Interbrew SA v Financial Times Ltd, Independent
Newspapers (UK) Ltd, Guardian Newspapers Ltd, Times Newspapers Ltd and
Reuters Group plc (8 March 2002, Court of Appeal)
Journalist won't face jail for failing to disclose
sources
Steve Panter
Diamonds aren't Auntie's best friend
Oryx Natural Resources v BBC (17 July 2002, Morland
J)
News of the World admits its mistake: there was no
fakery in the Cook Report
Roger Cook, Carlton Communications and others v News
Group Newspapers Ltd (31 July 2002, Eady J)
BBC investigator seeks to save reputation from police
criticism
Donal MacIntyre v Chief Constable of Kent, Mark Earl
Pugash and Michael Edward Costello (24 July 2002, Court of Appeal)
Sister fails to stop radio series depicting Alma
Cogan as a drunk
Caron v BBC (26 July 2002, Field J)
Archer Latest
R v Archer (22 July 2002, Court of Appeal Criminal)
Blasphemous libel still a crime
Whitehouse v Gay News; Whitehouse v Lemon
Argument ends in first religious hatred conviction
R v Alistair Scott (26 July 2002, Exeter Magistrates'
Court)
Former miner's leader was not a spy
Windsor v Boycott and Express Newspapers Ltd (12 July
2002, Morland J)
Sudanese diplomat wins vindication
Abdel Mahmoud Al-Koronky v Dominic Lawson, Christina
Lamb and The Sunday Telegraph Ltd (4 July 2002, Morland J)
Timothy Martin McManus, Glynis McManus, Anthony Frederick McManus and GT's Recollections Ltd v Victoria Beckham (4 July 2002, Court of Appeal)
An
outburst by Victoria Beckham in front of customers in a family run shop
in the Bluewater Shopping Mall is alleged to have led to a slump in
sales that almost destroyed the business. In an action for slander and
malicious falsehood, the owners of the memorabilia shop have launched
a claim for damages. The former Spice Girl denies accusing the shop
of ripping off its customers by selling fake autographs of her husband,
England football captain, David Beckham. More importantly, she denies
liability for the consequences that flowed from the press picking up
the story and repeating the allegations she had made.
At a High Court hearing in November last year, His Honour Judge John
Previte QC struck out three paragraphs of the shop owners' Particulars
of Claim on the basis that Mrs Beckham could not be held responsible
for the repetition of the allegations in the media. His reasons were
firstly, the newspaper articles did not 'repeat the slander'; secondly,
the publications were the independent act of a third party over which
Mrs Beckham had no control; and thirdly, the shop-owners could not establish
that the press were present in the shop or that Victoria Beckham knew
her words would be repeated in the media.
The Court of Appeal unanimously reversed his decision. Where the question
is whether damages flowed from the original publication, Waller LJ made
it clear that even a partial publication of the original 'sting' could
cause damage. He also said that damage could flow from the claimant
being asked questions about what had happened. The first instance judge
was simply wrong to say there was no repetition.
According to Waller LJ, the real point in the case could be expressed
in two ways. Can the claimants rely on the publication in the press
in order to establish the cause of the damage they say they suffered?
Or alternatively, can the defendant say that the damage alleged by the
claimant was caused by someone else and not her?
The Court held that: if a defendant is actually aware (1) that what
she says or does is likely to be reported, and (2) that if she slanders
someone that slander is likely to be repeated in whole or in part, there
is no injustice in her being held responsible for the damage that the
slander causes via that publication.
Further, if a jury were to conclude that a reasonable person in the
position of the defendant should have appreciated that there was a significant
risk that what she said would be repeated in whole or in part in the
press and that that would increase the damage caused by the slander,
it is not unjust that the defendant should be liable for it.
Posh was reportedly left with a £100,000 bill for costs so far and the
prospect of facing a trial.
Comment
This was a strike out application, so the issue was not whether Posh was to be held liable but whether a jury could hold her to be liable. On that basis the decision seems correct. One consequence may be that high profile celebrities who seek publicity will have to exercise caution in what they say for fear that they will be liable if someone else repeats it. That may not be a bad thing.
The judgment contained a customary swipe at libel lawyers for making the law too complicated. Well, perhaps Waller and Law LJJ should have consulted before coming up with different tests and adding to the complication.
Links
Judgment
News Reports
Posh
Spice to face slander trial
Ciar Byrne
July 04 2002
Comment
Pyrrhic
victories and summer thrillers
Marcel Berlins
July 09 2002
Lillie and Reed v Newcastle City
Council and others (30 July 2002, Eady J)
Dawn Reed and Christopher Lillie, two former nursery nurses, won £200,000 libel damages each when Mr Justice Eady upheld a claim against the four authors of an enquiry report which accused them of sexually abusing children in their care.
The report, commissioned by Newcastle City Council, was published four years after Lillie and Reed were acquitted of sexual offences against children. In his 800 page judgment, the judge found the allegations against the pair untrue and said that they were entitled to be '…vindicated and recognised as innocent citizens…untouched by the stigma of child abuse'. He made a finding of malice against the report's authors for seeking to mislead the public about aspects of the inquiry. A claim against the Council was rejected on the basis that its defence of qualified privilege was upheld.
A fuller report of the legal implications of the judgment will appear in the next newsletter.
Comment
No comment for professional reasons..
News Reports
I'm
angry for the children, for us, for a lost nine years
Clare Dyer
July 31 2002
Cleared
Bob Woffinden and Richard Webster
July 31 2002
Nursery
nurses win libel case
30 July 2002
James Mawdsley v Guardian Newspapers Ltd (29 July 2002, Morland J)
Mr Justice Morland has relied on the summary disposal provisions in s.8 of the Defamation Act 1996 to bring to an end what might have become a protracted dispute over a libel.
In its Weekend Review on 9 June 2001 the Guardian published what the judge described as a scoffing article about James Mawdsley. Having been imprisoned three times in Burma for his activism in supporting the pro-democracy movement, Mawdsley is now an emerging public figure seeking to establish himself as a Tory politician. The article, written by two freelance journalists, rubbished Mawdsley's commitment to the causes he espoused. The allegation that he had ditched his principles struck at the heart of his integrity and reputation and was in any event wrong. He continued to speak out on Burmese issues. The newspaper, which was politically authoritative, accepted that the article carried a defamatory message that he was a hypocrite using his fame to build a new career.
Since then the Guardian, through its independent Readers' Editor, had agreed to print an apology which had been the subject of a number of revisions in an attempt to accommodate Mawdsley's concerns. At Mawdsley's own suggestion it had also been the subject of a formal PCC adjudication which advised acceptance of the apology. The Guardian had also put in an offer of amends. But Mawdsley still felt it did not go far enough and took legal advice. Libel proceedings ensued.
The Guardian now applied under s.8 of the Defamation Act 1996 for summary relief. This is available at the discretion of the court where there is no defence to the claim with a realistic prospect of success and no other reason why it should be tried, and then only where the court is satisfied that summary relief will adequately compensate the claimant for the wrong s/he has suffered. The Guardian was prepared to accept that it had no defence if the court was prepared to determine the matter summarily.
Adequate compensation is defined as including any or all of the following:
- a declaration that the statement was false and defamatory
- an order to publish a suitable correction and apology
- damages not exceeding £10,000
- an order restraining further publication of the matter
It
is for the court to stipulate a 'package' of remedies which in its judgment
is 'adequate'. And if the parties cannot agree, it may also direct the
'time, manner, form and place' of the publication of the apology.
In setting the level of damages, comparisons were drawn with the guidelines
for personal injury cases. The judge determined that the likely maximum
award at trial would be £30,000 (the loss of sight in one eye) whereas
£50,000 (the amputation of a foot) was too high. He then took into consideration
that although the Guardian's apology was not an unequivocal admission
of inaccuracy and did not amount to a confession of guilt, it had acted
quickly and fairly and went a considerable way to meeting Mawdsley's
requests. In contrast, Mawdsley had never sought a huge award only a
strong swift apology; mounted a series of shifting requirements and
been obtuse and was young enough to recover his reputation. The judge
believed that the Guardian had established that Mawdsley had unreasonably
failed to mitigate his loss by not accepting an early vindication of
his reputation. This would have substantially reduced the damage. The
final version of the apology went a long way to dealing with the substance
of Mawdsley's complaint. In the circumstances, a package that included
an award of up to £10,000 (the loss of an index figure) plus a declaration
by the court, the publication of an apology and costs, would be adequate
compensation.
Comment
This may or may not have been the right decision on the facts. The
allegation was serious but there may have been mitigating factors. The
s.8 jurisdiction was designed primarily for claimants or defendants
to contend that their opponents had no reasonable claim or defence.
It is ironic that it is frequently being used by defendants to allege
that their cases are hopeless but that £10,000 is adequate compensation.
In the right case, it is a valuable weapon in the court's armoury to
do justice.
Links
News Reports
High
court ruling averts libel trial over Guardian article on Burma activist
Clare Dyer
July 25 2002
David Gregson v Channel Four Television Corporation (4 July 2002, Court of Appeal)
A libel trial was halted when both sides agreed to a statement in open court (see June newsletter). The Merseyside police officer accepted that the broadcaster and programme makers genuinely believed there had been a miscarriage of justice when making an episode of the 'Trial and Error' series. For its part, Channel Four acknowledged that any implication that the policeman had behaved corruptly or dishonestly was unjustified.
However, this only occurred after the Court of Appeal upheld the controversial decision of the trial judge, Morland J, to exercise his discretion to dispense with a jury for all issues save that of 'meaning'. The other issues were qualified privilege, malice and damages all of which he reserved to himself.
His decision followed Gregson's application to switch the mode of trial, from trial by judge and jury, to trial by judge alone. With a jury sworn in, Morland J heard the application on the first morning and determined that because he had already expressed a view on meaning, a trial by judge alone would necessitate a new hearing and it was preferable to continue with the jury. But as to the other issues, there would be a 'prolonged examination of documents' which could not conveniently be done with a jury. Uppermost in his mind was the large number of detailed facts on which the jury would have to be asked to make unanimous findings since between them the parties had lodged 60 proposed questions for the jury.
Channel Four's appeal took place halfway through the trial whilst the jury was considering its verdict on 'meaning' and before the other issues had been tackled. The Court of Appeal expressed the view that when Reynolds qualified privilege was in issue, the very fact that there was a debate as to what questions should be put to a jury, was a further factor in favour of exercising a discretion that this case was more appropriate for trial by judge alone. 'The intertwining of the role of judge and jury (if there is one) without an absolutely clear demarcation line would itself favour exercising a discretion in the way the judge did.'
Comment
This is potentially a very significant decision. The jury was retained
simply to determine the meaning of the broadcast but dispensed with
for all other aspects of the claim. This is standard practice in New
South Wales. It can often make good sense and the logical next step
is to have a jury determine any disputes on meaning at the outset of
the case rather than at the beginning of the trial.
Interbrew SA v Financial Times Ltd, Independent Newspapers (UK) Ltd, Guardian Newspapers Ltd, Times Newspapers Ltd and Reuters Group plc (8 March 2002, Court of Appeal)
Under threat of having their editors jailed and their assets seized, The Financial Times, Independent, Guardian, Times and Reuters have defied a Court of Appeal ruling that they must disclose the source of a leaked document (see March issue). In what has been described as a set back for press freedom and the protection of sources, the House of Lords refused them leave to appeal on 9 July 2002. The media organisations are considering taking their case to Strasbourg. Meanwhile, brewing giant Interbrew has withdrawn its attempt to enforce the judgment through contempt of court proceedings. It has handed the whole case over to the Financial Services Authority which is negotiating with the five media organisations to hand over the leaked papers.
The case concerned Interbrew's possible takeover bid for South African
Breweries. At first instance, Lightman J held that the company's analysis
of a possible bid was doctored and leaked in an attempt to manipulate
the press with the intention of rigging the share market. Such deception
is a criminal offence. He granted Interbrew a Norwich Pharmacal
Order (for an explanation of the jurisdiction see last month's report
on Ashworth v MGN Ltd) to deliver up the original and forged
versions of the document.
As in Ashworth, the Court of Appeal here considered the scope
of s.10 of the Contempt of Court Act 1981 in the context of Article
10 of the European Convention on Human Rights. Among other things, the
court held that:
- the detection of crime was not a proper object of the Norwich Pharmacal power (disapproved of by Lord Woolf in Ashworth);
- the issue under s.10 was whether it was necessary in the interests of justice or for the prevention of crime to breach the confidentiality of sources otherwise protected by the law;
- that the source committed or was party to a crime was not irrelevant but neither was it a free standing ground for abrogating the s.10 privilege;
- the source's motive was immaterial to the legal issues but the purpose of the leak was likely to be highly material;
- deciding whether disclosure was 'necessary' under s.10 was a matter of judgment of both fact and law and not a discretion.
Comment
This was an entirely foreseeable scenario. In the unlikely event that a claimant gets an order for disclosure, there remains the likelihood of the newspaper failing to comply with it. Contempt proceedings generally serve no real benefit and simply generate further negative publicity for the claimant and allow the defying journalist martyrdom status.
Links
Judgment
News Reports
Interbrew
drops case against media
Kevin Maguire
July 26 2002
Lords
refuse media appeal
Clare Dyer
July 11 2002
Six
months ago Steve Panter, the deputy news editor of the Manchester Evening
News refused to reveal his source for naming the prime suspects behind
the IRA bomb in Manchester in 1996. He has been under investigation
ever since and has only just learned that contempt proceedings will
not be brought against him. The Attorney-General has said that Panter
is not to be prosecuted because it was 'not appropriate' and 'not in
the public interest'. However, he says this decision does not mean that
in the future a judge may not order a journalist to disclose their sources.
Comment
Clearly the Attorney-General had no stomach for a potentially embarrassing
fight, which could have led to Mr Panter's imprisonment and instant
martyrdom.
Links
News Reports
Editor
attacks courts over naming sources
Ciar Byrne
July 19 2002
Back to top
Oryx Natural Resources v BBC (17 July 2002, Morland J)
The
BBC faces the biggest libel payout ever after a news broadcast last
October. It claimed to have uncovered a link between al-Qaeda, the terrorist
organisation and Oryx, an international industrial group. It also labelled
Oryx shareholder Kamal Khalfan as a convicted terrorist and a 'front
man for Osama bin Laden'.
In fact, Kamal Khalfan was confused with convicted terrorist Mohammad
Khalfan who is serving a life sentence for his part in the 1998 bombings
of African US embassies. The BBC production team had failed to put the
allegations to Oryx and the allegations were false. This made it difficult
to argue that they had acted reasonably and responsibly, a necessary
feature for a defence of 'qualified privilege'. Despite an on screen
apology three weeks after the broadcast and after nearly nine months
of legal evaluation, the BBC only withdrew its defence on the eve of
its first appearance in court. The court approved a consent order which
gave Oryx judgment and its costs.
A claim by shareholder Kamal Khalfan had already been settled with a
payment of nearly £100,000 but Oryx is now seeking damages of £10 million
plus. Oryx claims that lost production in its Congolese diamond mine
and worldwide harm to its reputation and brand justify such enormous
damages. The BBC disputes the sums as speculative and without foundation.
The corporation believes the loss to Oryx is less than £1 million. A
hearing on damages is scheduled for November.
Comment
The BBC may have created a rod for its own back by investigating
its potential defence for so long before admitting liability. An early
deal on damages, albeit at a high price, might have been wiser given
that licence payers' money is at stake.
Links
News Reports
Auntie's
£10m ego trip
Jamie Doward
July 21 2002
Libel
may cost BBC £10m
Matt Wells and Lisa O'Carroll
July 18 2002
BBC
drops defence in diamond libel case
Lisa O'Carroll
July 17 2002
Roger Cook, Carlton Communications and others v News Group Newspapers
Ltd (31 July 2002, Eady J)
The
News of the World has retracted its claim that the Cook Report was a
cynical sham and that a number of programmes had been faked. The presenter,
members of his production team and the TV company had sued for libel
but in a statement in open court the newspaper acknowledged that its
accusation that viewers were dishonestly deceived should not have been
published. Its prominent articles contained material inaccuracies.
Despite sending its dossier of evidence to the Independent Television
Commission, which found no evidence of fakery or breaches of the regulatory
code, the newspaper continued to publish further articles. The News
of the World now accepts the outcome of the ITC's investigation and
has agreed not to republish the allegations. A settlement has been agreed
which includes a retraction to appear with suitable prominence in the
paper.
Comment
We are unable to comment since we represented the producers.
Links
News Reports
NoW
admits Cook Report allegations were false
Ciar Byrne
July 31 2002
Back to top
Donal
MacIntyre v Chief Constable of Kent, Mark Earl Pugash and Michael Edward
Costello (24 July 2002, Court of Appeal)
Another MacIntyre Undercover programme is under the legal spotlight. After an episode that criticised the treatment of disabled residents in a council care home, Kent police prepared their own report into whether criminal offences had been committed. An article in the Sunday Telegraph followed, on which Mark Pugash, the Kent police press officer, later commented. MacIntyre claims that these comments defamed him by suggesting that the public was misled by the inclusion of deliberately and dishonestly distorted undercover footage.
Kent police applied to Gray J in January 2002 for an order to try certain preliminary issues and allow it to amend its defence to include 'similar fact' evidence of an earlier programme in the same series. There the Elite Model Agency claimed that the BBC had been responsible for dishonest editing and reporting. The judge refused permission on both counts.
The Court of Appeal has now upheld his ruling. In doing so it held that contentious evidence from a different programme risked distracting the jury and making the trial unmanageable and uneconomic. What is more, it would re-open issues that were the subject of a confidential settlement in the earlier programme.
Comment
This case illustrates the reluctance of the Court of Appeal to overturn a case management decision of the judge.
Links
Judgment
Caron v BBC (26 July 2002, Field J)
A
radio programme depicting the fifties singer Alma Cogan as a drunk and
her mother as domineering will air on the BBC despite the attempts of
Cogan's sister Sandra Caron to stop it. Mr Justice Field threw out the
claims for defamation and malicious falsehood in relation to the series
called 'Stage Mother, Sequinned Daughter'. Since both Alma Cogan and
her mother are deceased he ruled out a claim for defamation as impossible.
The claim for malicious falsehood was also unsuccessful as Caron failed
to prove that the assets of the singer's estate had been damaged. 'I
don't see how this programme, in portraying your mother in a way which
you say is a mis-portrayal and depicting your sister as having a drink
problem, can undermine the assets of the estate. You have to show misstatements
are made maliciously, without honest belief in their truth and for some
bad motive'.
Comment
A noble and perhaps understandable display of sibling loyalty. However,
there is no prospect of inroads being made into the rule that prevents
relatives from bringing litigation over defamatory statements about
their dearly departed.
Links
News Reports
Singer's
sister loses legal fight
Sam Greenhill
27 July 2002
Back to top
R v Archer (22 July 2002, Court of Appeal Criminal)
It
took less than two minutes for three Appeal Court judges to refuse Archer's
application for leave to appeal against his conviction and sentence
for perjury and perverting the course of justice. His four year sentence
was not 'manifestly excessive' and should stand. The Court did not accept
that the disgraced peer was the victim of an 'unbalanced' trial nor
that the media coverage had distracted the jury.
The Daily Star is now seeking repayment of the £500,000 damages Archer
was awarded in 1987 after the newspaper claimed he had sex with prostitute
Monica Coghlan. The newspaper also wants interest of up to £3 million.
Negotiations continue behind closed doors but without an agreed settlement
there will be a further trial on damages in the Autumn.
Links
News Reports
Archer
loses court of appeal bid
Ciar Byrne
July 22 2002
Archer
loses appeal against his conviction and sentence in newspaper perjury
case
Kim Sengupta
23 July 2002
Whitehouse v Gay News, Whitehouse v Lemon [1979] AC 617; [1979] 2 WLR 281; [1979] 1 All ER 898, HL
Campaigners
gathered in London on Thursday 11 July to protest about the continued
existence of laws on blasphemy. The centrepiece of the protest was the
recitation of a poem by James Kirkup, "The Love That Dares To Speak
Its Name". The poem brands Jesus as gay and having had sexual relations
with Pontius Pilate, John the Baptist and other disciples. It was the
publication of this poem in 1977 in Gay News that elicited the last
prosecution for blasphemy in this country. It had been widely believed
at the time that the laws had become obsolete having not been used since
1922. However, the case of Whitehouse v Lemon saw the editor of Gay
News, Denis Lemon, being prosecuted and receiving a nine month suspended
sentence, although it was later overturned on appeal. The protest was
timed to coincide with the twenty-fifth anniversary of the trial.
Comment
It is doubtful that the law as it stands is compatible with Article
10 ECHR. However, any future prosecutions are unlikely.
Links
News Reports
I
am being used, claims blasphemy trial poet
Tania Branigan
July 11 2002
Comment
News
Analysis: The 'dead letter' law of blasphemy that can't be written off
Paul Vallely
12 July 2002
R v Alistair Scott (26 July 2002, Exeter Magistrates' Court)
A
heated conversation over Islamic fundamentalism turned into a nasty
argument. Scott accosted strangers in the street and berated them for
the Islamic involvement in the 11 September New York attacks on the
World Trade Centre. He admitted religiously aggravated threatening,
abusive or insulting behaviour. The prosecution was brought under s.5
of the Government's Anti-Terrorism Crime and Security Act which makes
the incitement of racial hatred an offence. Scott is believed to be
the first person convicted under the Act since it came into force last
December.
Windsor v Boycott and Express Newspapers Ltd (12 July 2002, Morland J)
In
May 2000 the defendants published an article entitled "Spy Expert Predicts
the Revelations in Former M15 Chief's Memoirs: It's the little secrets
that could hurt the most". It alleged that the claimant, the former
chief executive officer of the National Union of Mineworkers, acted
as a government agent during the 1984-85 miners strike. It was further
claimed that his role as an informant for the security services led
to the collapse of the strike and that he had breached his duty of confidentiality
to the Union. The article stated that the claims against Windsor had
been backed up by an MI5 agent who had access to Union files.
However, the MI5 agent mentioned in the article and the former head
of MI5 have since maintained that the claimant had not been a government
informant. In a statement in open court the defendants apologised for
the allegations and undertook never to repeat them, as well as agreeing
to pay damages and the claimant's costs.
Abdel Mahmoud Al-Koronky v Dominic Lawson, Christina Lamb and Sunday Telegraph Ltd (4 July 2002, Morland J)
The
claimant, a press councillor at the Sudanese embassy, brought a libel
action following the publication by the defendants of an article entitled
"Sudan diplomat kept slave girl in London home" in September 2000. The
article alleged that Mr Al-Koronky had kept Ms Zainab Nadir as a slave
in his home since she was twelve years old. The article further stated
that Ms Nadir had recently fled his home to claim political asylum and
was in hiding and receiving medical attention. In a statement in open
court the defendants apologised for the article and for the litigation
that followed and agreed to pay substantial damages. They admitted that
the allegations were untrue and acknowledged that Ms Nadir had been
employed by the Koronky family between June to September 2000 and had
in no sense been mistreated.