| 3. |
The plaintiff is a journalist and managing director of Box Productions
Ltd, a television production company. In the libel action with which
this appeal is concerned, he sues the publishers of the Sunday Times,
its Editor and a journalist for what he alleges was a defamatory
publication in an article in the Sunday Times for 9th May 1993. The
article was headed "Film on Ulster death squads a hoax, says missing
witness". It was about a programme produced by Box called "The
Committee", broadcast by Channel 4 television on 2nd October 1991. The
general thesis of the programme was that there was in Northern Ireland
between 1989 and 1991 a Committee known as "the Central Co-ordinating
Committee" consisting of prominent and apparently respectable members
of the Loyalist community. It was said that there was also an
organisation of disaffected RUC officers known as the "Inner Circle"
which controlled a larger organisation within the RUC known as the
"Inner Force". It was said that the Committee obtained from the RUC
the names of suspected Republicans which were then passed to Loyalist
paramilitary organisations to carry out their assassinations. The
members of the Committee were thus co-conspirators in the resulting
murders. The sources for these allegations who appeared on the
programme itself were a Mr Sands, whose identity was concealed by
referring to him as "Source A", a Mr Quinn, referred to as a "liaisons
officer," and an anonymous police officer contact of a newspaper
journalist. Sands claimed that he was himself a member of the
Committee.
| 4. |
The article
| 5. |
The Sunday Times article claimed that the programme was a hoax. A
general theme of the article was that the quality of the sources for
the programme, Sands in particular, was so poor and unreliable that no
respectable broadcaster would have considered putting the programme out
in the terms in which it was. The article was lengthy, comprising 28
paragraphs of newsprint. Its introductory paragraphs read as
follows:
| 6. |
| |
"It seemed the television scoop of the year, revealing the existence
of an official conspiracy to murder republicans in Northern Ireland.
This weekend, however, the makers stand accused of producing little
more than a collage of unsubstantiated rumours and fabrications,
condemned by the very man whose identity they went to court to
protect.
| | |
"Source A", the anonymous central witness in the sensational Channel 4
documentary, The Committee, has now described the programme as a hoax
and claimed he was tricked into appearing. The man, who appeared on
the film with his face masked to say he knew about 19 such killings,
claimed he was promised £5,000 to recite a prepared script about
events on which he had heard rumours but about which he had no personal
knowledge. He said he was assured his interview would not be
screened.
| |
This weekend he said: "At the time I didn't know if what I was saying
was true or not. But the programme makers told me that they had
checked it out so I thought it must be right. They took me to London
and I felt trapped."
| |
His testimony undermines, perhaps fatally, suggestions raised by the
Dispatches programme, screened in October 1991, that there were
sinister death squads in Northern Ireland controlled by a committee of
police officers, Protestant businessmen and loyalist terrorists."
| | |
| 7. |
The following paragraphs give a detailed account of what Source A had
said on screen in the programme and what he later told the Sunday Times
about the way in which the programme was made.
| 8. |
The proceedings
| 9. |
The writ was issued on 3rd May 1996, very shortly before the expiry of
the then 3 year limitation period. The plaintiff explains this delay
by saying that he had another libel action against another national
newspaper which he decided to pursue first. He was not financially
able to pursue two libel actions at the same time.
| 10. |
In the present proceedings, a statement of claim was served on 19th
August 1996 and a defence pleading justification on 8th November 1996.
On 5th February 1997, Astill J. heard and determined an application by
the plaintiff under Order 82 rule 3A which sought to exclude the
defendants' then plea of justification on the basis that the article
was not capable of bearing the meaning for which the defendants
contended. Astill J. put the matter which he had to consider in these
terms:
| 11. |
| |
"The plaintiff's case is that the clear and unambiguous meaning of the
article which would be apparent to the hypothetical reasonable reader
is that this plaintiff was a hoaxer and a deceiver, yet the plea of
justification means that he was incompetent and careless. To that the
defendants add "reckless". In any event, it means that the plaintiff
was hoaxed rather than a hoaxer, deceived rather than a deceiver. If
the only meaning that the reasonable reader could give to the article
is the opposite, then, submits the plaintiff, the plea of justification
must go."
|
| 12. |
After hearing submissions Astill J. came to the conclusion, not without
hesitation, that there remained room for the reasonable reader to
conclude that the plaintiff, albeit the Managing Director of the film
makers, was not a party to the hoaxing or deception. The judge
accordingly permitted the defendants' then pleaded meaning, which
included the allegation of recklessness, to remain.
| 13. |
In March 1997, the plaintiff served a list of documents. There was
also provided to the defendants important parts of the source material
for the television programme. These included unedited video tapes of
Sands' interview and audio tapes of his recorded interview with a
researcher. The defendants were also provided with transcripts of
these tapes. On 4th September 1997, the defendants' solicitors wrote
saying that leading counsel had advised that the defence needed
amendment. A draft was expected in October and a hearing of an
application for permission to amend was expected in November 1997.
These dates were not met. On 19th December 1997 there was exchange of
witness statements. The trial of the action was fixed for 5th October
1998. On 6th April 1998 the defendants applied for leave to re-amend
their defence and a draft of the proposed re-amendment was served. The
application was not heard until July 1998, in part because of the
availability of counsel. Eady J. gave his decision allowing the
re-amendments on 30th July 1998. He also vacated the date fixed for
the trial, although he expressly found that he did not regard the
re-amendments which he had permitted as giving rise to any necessity to
vacate the hearing date. He said in his judgment that he would
consider the question of vacating the trial date on quite separate
grounds, including the difficulty in which Mr Price Q.C found himself
in representing the plaintiff in October 1998. Mr Price has told us
that this did not mean that he was not available, but that he was
telling the judge that he could not reasonably prepare for the trial in
the time available between the end of July and the beginning of
October. The date for trial has now been refixed for 11th January
2000.
| 14. |
This is the plaintiff's appeal, by permission of this court given by
Evans and Ward LJJ. on 25th November 1998, from Eady J.'s decision
allowing the re-amendments.
| 15. |
Before Eady J. the plaintiff opposed the application to re-amend on
grounds that:
| 16. |
| |
(a) the article was not capable of bearing meanings now attributed to
it by the defendants' amended pleading and that particulars of
justification which sought to support that meaning should not be
allowed;
| | |
(b) the additions to the particulars of justification resulted in a
massive enlargement of the scope of the action which, on the contrary,
should be confined to central necessary issues;
| |
(c) the re-amendments were brought forward too late and should be
disallowed in particular because to allow them would mean that the
already fixed trial date would have to be postponed and that this would
be unjust; and
| |
(d) the defendants were guilty of overreaching, not least because they
served witness statements in December 1997 when they must have known
that they intended to apply for permission to make very extensive
additions to their defence.
| | |
| 17. |
Meaning and particulars of justification
| 18. |
The plaintiff's pleaded defamatory meaning of the article is as
follows:
| 19. |
| |
"In their natural and ordinary meaning, the said words meant and were
understood to mean that:
| | |
| |
(1) the plaintiff hoaxed and deceived Channel Four Television and the
public by producing a sensational television documentary ("The
Committee") making allegations of the most serious kind, of an official
conspiracy to murder republicans in Northern Ireland, which was in fact
a fabrication in which supposedly key eye-witnesses ("Source A" and
Edward Quinn), who, as the plaintiff well knew, actually had no
personal knowledge at all of the matters related by them but had merely
heard rumours, were bribed to recite scripts prepared for them by the
programme makers.
| | |
(2) The plaintiff's said hoax involved using six men for on-screen
interviews to support the programme's thesis (of an official
conspiracy), although not one of them believed in it, and all of them
were duped into appearing on the programme.
| |
(3) The plaintiff (among others) was under police investigation on
reasonable suspicion of having committed a crime or crimes by his said
actions in making the said programme.
| |
(4) Accordingly, the Plaintiff is quite unfit ever to be employed
again in the production of documentary films or programmes or in any
form of journalism."
| | |
|
| 20. |
The defendants' original Lucas-Box meaning which Astill J. considered
was as follows:
| |
"Further and alternatively, if and insofar as the words meant and were
understood to mean that the plaintiff:
| | |
| |
(i) knew or ought to have known that the film produced by his company
for Channel 4 was an inaccurate and unreliable film which relied on
coached witnesses and the largely unsubstantiated, uncorroborated and
incredible evidence of one man and in which the statements of other
supposed witnesses had been misrepresented; and
| | |
(ii) accordingly, acted improperly, alternatively acted recklessly, by
causing or facilitating the broadcast of the film, which was almost
certainly untrue and calculated to mislead the public;
|
| |
they are true in substance and in fact."
| |
| 21. |
The defendants' re-amended Lucas-Box meaning which Eady J. permitted
was:
| 22. |
| |
"Further and alternatively, if and insofar as the words meant and were
understood to mean that the plaintiff:
| | |
| |
(i) knew or ought to have known that the film produced by his company
for Channel 4 was an inaccurate and unreliable film which relied on
coached and/or prompted witnesses and the largely unsubstantiated,
uncorroborated and incredible evidence of one man and in which the
statements of interviewees had been misrepresented; and
| | |
(ii) acted recklessly by causing or facilitating the broadcasting of
the film, which was in substance untrue and calculated gravely to
mislead the public in presenting as proven the gravest allegations of
conspiracy to murder Catholics (including wholly innocent Catholics
with no terrorist affiliations) against a supposed Committee of senior
police officers, Protestant businessmen, solicitors, professional
people, clergy and loyalist terrorists which, if believed, would have
seriously jeopardised the standing of, and trust in, the police in
Northern Ireland and/or gravely harmed relations between the two
communities in Northern Ireland and which was little more than a
collage of unsubstantiated rumours and fabrications;
| |
(iii) had induced Channel 4's most senior management to believe before
and after the broadcast that the programme was true in every material
particular and made to the highest journalistic standards when it had
not been; and
| |
(iv) is thereby unfit to produce documentary films on controversial
issues requiring careful and dispassionate investigation and the
objective assessment of evidence
| | |
| |
they are true in substance and in fact. Further if, which is denied,
the article meant that the plaintiff himself had been a party to the
coaching or prompting of Source A and/or that the plaintiff's conduct
in relation to the programme and/or his subsequent endorsement of the
programme before the Divisional Court and/or Box's refusal to identify
the source for the programme merited investigation by the police, the
article is true in those meanings also."
| |
| 23. |
The original particulars of justification were extensive in giving, for
example, detailed reasons why Sands' information should have been
regarded as obviously unreliable.
| 24. |
Eady J. summarised the defendants' proposed re-amended particulars of
justification in these terms:
| 25. |
|
|
"It is necessary for me to attempt to summarise the very extensive
additional particulars of justification upon which the defendants now
seek to base their plea. The proposed amended particulars run
notionally to 14 sub-paragraphs, although there are so many
sub-sub-paragraphs with their own series of numbers that it becomes
very confusing. The whole plea spreads over some 38 pages. The first
five numbered sub-paragraphs are introductory, in the sense that they
set out how the programme was commissioned: (i) the period over which
it was researched and produced, (ii) the involvement of a researcher
called Ben Hamilton, who is not a party to these proceedings, (iii) the
role of the plaintiff and the nature of his responsibility, (iv) the
involvement of a Martin O'Hagan who is said to have been an
unsatisfactory person to have relied upon for information as being
someone convicted of firearm offences and, so it is said, being a
journalist notorious for outlandish and uncorroborated stories, and (v)
the introduction by him of a man referred to as Source A, in fact named
Sands, who is described as the programme's primary witness.
|
| | 26. |
|
|
Mr O'Hagan is described as the originator of the "Inner Circle/Inner
Force" story. It is said also that the plaintiff failed to reveal
O'Hagan's involvement, either in the programme or to the Divisional
Court when the matter came before them for non-disclosure of
information: see D.P.P. v Channel 4 Television Co [& Box Productions] [ [1993] 2 All E.R. 517].
|
| | 27. |
|
|
Next in sequence, the allegations focus on the centrality of Source A
and what is said to be the inherent implausibility of his story, the
alleged pretence of a need to keep his identity secret (when he was
personally untroubled by this prospect), and his inability to provide
any hard information as to what has been described as "The Committee"
of which he was said to be a member.
|
| | 28. |
|
|
There is then a long section identifying inconsistencies and errors in
Sands' account of individual murders said to have been authorised by
the Committee, and also prompting, and a reliance by him on material
apparently deriving from Martin O'Hagan. The attacks or killings
addressed are those identified as (1) the Cappagh killings; (2) Mr
Finucane; (3) Sam Marshall; (4) Denis Carville: (5) John O'Hara: (6)
Brendan Curran; (7) the Sweet Shop killings and (8) Thomas Casey.
|
| | 29. |
|
|
Next, one finds particulars about Sands being "evasive and
unconvincing" as to identifying members of the Committee, and about his
account of the role of the R.U.C. and the Committee as being
self-contradictory and wholly implausible. Considerable detail is
given. His interviews are said to reveal considerable reliance upon Mr
O'Hagan, and the defendants rely on what is said to have been the
"self-evident danger that Sands was being rehearsed by O'Hagan."
Reference is made to payments in cash or kind to O'Hagan and Sands.
|
| | 30. |
|
|
Attention is drawn to muddle and confusion as to the various bodies
said to be involved in the killings and to the fact, or alleged fact,
that it was only in the final filmed interview that Sands consistently
referred to the body as "the co-ordinating Committee". Reference is
made to an allegation that Special Branch had handed to an assassin a
file on John McCann with a view to his murder, but no effort was made
by the plaintiff, apparently, or Mr Hamilton to take the information
seriously so as to protect Mr McCann's life. Reliance is placed on
misrepresentations said to have been made to the R.U.C. when Channel 4
submitted a dossier about Sands and his allegations in October 1991.
|
| | 31. |
|
|
Another part of the pleading alleges that Channel 4 decided to test
Sands' allegations, and reference is made to checks carried out by a
so-called troubleshooter. It is also said that the plaintiff presented
Sands to the Divisional Court as an impeccable witness, and that in
other respects the plaintiff misled the Divisional Court in his own
affidavit.
|
| | 32. |
|
|
Details are given of warnings received, or allegedly received, by the
plaintiff and Mr Hamilton that the story was "highly likely to be
untrue". It is said that the most basic checks had not been carried
out into the claims made by Sands, especially in relation to the
membership and activities of the so-called "Committee". What is more,
the defendants assert that none of the persons said to be members of
the Committee actually conspired to commit any murders, and are not
members. That is an allegation relied upon by the defendants as being
central to the case, and they submit that it would have been indeed
central to the charge of recklessness which was sanctioned by Astill J.
in February of last year.
|
| | 33. |
|
|
Part of the criticism made by the defendants is that those named
individuals were not even contacted prior to the broadcast or to the
submission of the dossier.
|
| | 34. |
|
|
Sands' allegations are said to be unsupported by any other witness.
His claims about the "Inner Circle", are said to be supported only by a
Mr Quinn, as to whom separate facts are pleaded showing the
unsatisfactory nature of his evidence, in particular inconsistencies
with what Sands himself was saying. Thus it is said also that no
reliance should have been placed on him. Furthermore the defendants
point to affidavit evidence, placed before the Divisional Court in 1992
about Quinn, which is said to be false in a number of important
respects.
|
| | 35. |
|
|
There are criticisms in relation to other interviewees for the
programme having been misled and of editing out of material that did
not support the Committee thesis.
|
| | 36. |
|
|
Finally, reliance is placed on the subsequent behaviour of the
plaintiff in dismissing material which has subsequently cast doubt on
the programme's thesis and upon the continued assertions by the
plaintiff of the truth of what was said in the programme, including in
his book "The Committee" published in America."
|
| | 37. |
The judge's decision
| 38. |
Eady J. said that, as libel actions go, this raises issues about as
serious as one could envisage. He said that there clearly was the
plainest public interest in resolving the substantive issues in the
trial as fully and openly as possible. On the subject of the meaning
of the article, the judge said:
| 39. |
|
|
"The word "hoax" which figures so largely in the article itself, and
in the submissions before me, sometimes has connotations such as one
might associate with the old fashioned notion of a "prank", but in the
present context the word has very grave significance indeed. The clear
suggestion in the article is that the programme, broadcast in October
1991, contained false information which led the public astray at least
in relation to the state of the evidence. The word clearly conveys the
impression that some person or persons involved in the making of the
programme must have been dishonest, whether for financial or political
motives, as opposed to merely incompetent. The challenge is to the
central thesis of the programme, namely that there was a body of
outwardly respectable people called "the Committee" who were conspiring
to murder catholic citizens in Northern Ireland.
| |
The article is not, however, definitive as to who was dishonest. It
is conceivable that readers might have concluded that some people were
parties to the broadcast of the programme for reasons of political
prejudice or bigotry without necessarily knowing that the content of
the programme was false and unsubstantiated."
| |
| 40. |
The judge recorded Mr Price as having submitted that the re-amendment
had the effect of putting in issue (1) the truth of the programme's
thesis and (2) quality of the journalistic research which underlay the
programme. Mr Price had submitted that any such meaning was outside
the range of meanings which the words in the article were capable of
bearing. He submitted that the lowest meaning which the defendants
should be permitted to plead was that which they urged before Astill J.
and which he held with some hesitation was a meaning which the words
could bear, that is to say that the plaintiff was recklessly involved
in producing the hoax film. Of this submission, the judge said:
| 41. |
|
|
"I reject that submission without hesitation. How could the plaintiff
in the real world conceivably restore his reputation if he has been
defamed by this article without the defendants being permitted to
investigate the truth of the programme's thesis and, if it is shown to
be false, how the plaintiff came to be associated with it? It is
implicit in the article that the plaintiff was associated with a
programme which put out a false picture as to the state of the evidence
in relation to these very grave allegations. It fundamentally attacks,
therefore, the quality of the journalism. It would reduce this libel
action to a ritual if those fundamental and serious issues were
excluded from consideration. It is unreal to suppose that a jury could
be seized of this matter in which the plaintiff maintains that the
central thesis of the programme was true, and the defendants that it
was false, without being permitted to know their respective positions,
let alone adjudicate between them. Part of the defamatory sting of the
article, insofar as it refers to the plaintiff, must be that he was in
part responsible for putting out a fundamentally false accusation of
conspiracy to murder. In such circumstances, that allegation would be
assumed false in the plaintiff's favour unless and until the defendants
justify it, as they wish to do."
|
| 42. |
The judge accordingly held that it was fundamental to the article that
the allegations in the programme were false and that therefore the
defendants were in principle entitled to justify that proposition as an
essential part of their case of justifying their defamatory allegations
about the plaintiff's association with the programme.
| 43. |
The judge considered the question of delay. He said that there was no
doubt that there had been delay which he might have to reflect in a
costs order in due course. But he said that in something as
fundamental as this it would be wrong not to allow the amendments. He
summarised the reasons advanced to explain the delay as:
| 44. |
|
|
"... such factors came into play as the gravity and complexity of the
allegations; the fact that the plaintiff and his advisors received
warning of the amendments a year ago but, more particularly in December
(when they were supplied with witness statements relating to the
matters, or some of the matters which now form the subject matter of
the particulars of justification); as well as being warned, of course,
in April, when the pleading was actually served. Reference was made
also to the need for further discovery from the plaintiff; to gathering
evidence in Northern Ireland; and, in particular, to the difficulty of
analysing the disclosed material (consisting as it did of notes which
were not easy to decipher and also tapes - audio tapes in particular,
but also video tapes - which it was necessary to analyse in the closest
detail)".
|
| 45. |
The judge acquitted the defendants of the charge of overreaching, with
its overtones of abuse of process. He saw no evidence to justify that
proposition, although he entirely accepted that there had been delay
which was considerably longer than was justified by the evidence
itself. He said that it was highly undesirable that the allegations in
the case should not be investigated until a year (or more, as it has
turned out) from the date when he was giving judgment in July 1998.
But he did not regard the re-amendments which were proposed on behalf
of the defendants as justifying an adjournment. He considered, without
deciding, the question whether the action might be tried by judge
alone. He said that there were very telling arguments in favour of
that course. He considered briefly Mr McPhilemy's own financial
difficulties. He said that there was no evidence before him to
demonstrate that the amendments made any difference between the
plaintiff being able to afford the action and his not being able to do
so. He was not persuaded that this was a sufficient reason for not
permitting amendments which otherwise seemed to him to be
legitimate.
| 46. |
In the result, the judge allowed the re-amendments to be made. The
date for the hearing was postponed, but, on the judge's view, for other
reasons.
| 47. |
Grounds of appeal
| 48. |
The plaintiff's appeal to this court is confined to challenging the
re-amendments to the Lucas-Box meanings and to three paragraphs only of
the particulars of justification. The submissions made on his behalf
essentially seek to have excluded those parts of the re-amended defence
which put in issue the truth or falsity of the central thesis of the
Channel 4 television documentary. This was that there existed in
Northern Ireland in the years 1989 to 1991 a murder conspiracy
involving Loyalist terrorists, prominent members of the Loyalist
community and officers of the Royal Ulster Constabulary.
| 49. |
The written grounds of appeal may be summarised as contending that Eady
J. gave insufficient weight to the limitations imposed by Astill J.'s
decision; that he should not have allowed the introduction of a
wide-ranging inquisition into the question whether the thesis of the
programme was true, which was largely irrelevant to the question
whether the plaintiff was responsible for a hoax or whether he was
reckless; that the judge failed to confine the issues to those
essential to a fair determination of the real dispute between the
parties; that he failed sufficiently to take account of the plaintiff's
lack of means and its effect on his ability to conduct overloaded
litigation; that the judge failed to give due weight to the defendants'
delay in bringing forward the proposed amendments whose effect was to
postpone the fixed trial date; and that he should not have acquitted
the defendants of overreaching.
| 50. |
Parties' submissions
| 51. |
It is submitted that the plaintiff's complaint is that he is accused of
perpetrating a hoax and a deception and that therefore the central
issue at the trial should focus on whether he was a party to hoaxing
and deceiving the public in this way. It was the suggestion of deceit
and hoaxing made in the article which was particularly deadly to a
documentary producer's reputation. The plaintiff claims no special
treatment because he is almost entirely without funds and cannot obtain
legal aid. But it is submitted that the principle that libel trials
should be limited to essential issues is especially in point where one
of the parties is at a very severe disadvantage in being able to afford
the litigation. It is submitted that libel proceedings are not a
proper forum for an enquiry into the truth or falsity of the existence
of a conspiracy to murder. Such a far reaching inquiry cannot sensibly
be grafted on to this libel action. Such an inquiry would contribute
little or nothing to the real issues in the action. The time and
expense of litigating that issue properly would be wholly
disproportionate.
| 52. |
It is submitted that Astill J's ruling of February 1997 limited the
range of meanings which the words are capable of bearing to meanings
to:
| 53. |
|
|
(1) that the plaintiff was himself a hoaxer and deceiver, this being
essentially the plaintiff's pleaded meaning, and
| |
(2) that the plaintiff was reckless in failing to prevent a hoax by Mr
Hamilton and Mr O'Hagan, this being the lowest meaning permitted by
Astill J's judgment.
| |
| 54. |
It is submitted that the defendants should be held to that ruling,
which was not appealed. It is said that the new Lucas-Box meanings are
unnecessarily long and complicated; and that the re-amended Lucas-Box
meaning would enable the defendants to advance a positive case that the
Committee did not exist as a murder conspiracy in Northern Ireland in
1989 to 1991. It is accepted that the original Lucas-Box meaning was
open to the same objection but that was not critical both because
Astill J. had limited the meaning and because no such case was in fact
advanced in the unamended particulars of justification.
| 55. |
The three paragraphs of the re-amended particulars of justification to
which the plaintiff now objects are paragraphs (10), (10A) and (14).
Paragraph (10) alleges that the most basic corroborative checks upon
Sands' allegations were not carried out. It is said that no attempt
was made to observed alleged members of the Committee arriving for a
meeting or to check hotels where the meetings were said to have been
held. Basic checks were not made on those named by Box in a dossier
submitted to the RUC as being alleged to be members of the Committee
which, it is said, would have revealed the sheer improbability of their
involvement. These people are then named and described as generally
respectable and apolitical people. Paragraph (10A) asserts that none
of the people identified in paragraph (10) ever conspired to commit any
murders and that they are not members of any organisation such as the
Committee, as described in the programme. Paragraph (14) alleges that
the plaintiff has continued to assert publicly and to Channel Four that
the programme was true and refers to a book to be published by him in
America - I understand that it has now been published - in which he
restates the substance of the main thesis of the programme and accuses
those named in the dossier supplied to the RUC as responsible for the
murders referred to in the defendants' particulars.
| 56. |
The essential objection to the first two of these paragraphs is that
they seek to introduce an inquisition into the question whether a
murder conspiracy was operating in Northern Ireland in 1989 to 1991.
It is accepted that at the time of the hearing before Eady J. passages
in the plaintiff's amended reply put in issue the truth or falsity of
what Sands had told the programme makers. To that extent, the reply
failed sufficiently to observe the distinction between what is true or
false in an absolute sense and what is true or false in relation to the
state of the evidence available to the programme makers. Appreciating
this distinction, the reply has now been re-amended.
| 57. |
As to the judge's reason for rejecting the plaintiff's opposition to
these re-amendments, it is submitted that a journalist would be fully
vindicated by a judgment acquitting him of any lack of scrupulousness
and care and skill in making his investigation. That would be so
whether or not the testimony of the witness on which the story was
based turned out to be true or false. It is submitted that whether or
not Sands' testimony can be shown to be true or false is irrelevant to
the issue of the plaintiff's honesty or even to any issue of the
quality of his journalism. Whether the allegations made in the
programme were true is not central. What matters is the care with
which the programme was made. Even with the most careful research, a
programme might be made containing information which was in fact
incorrect. It is suggested that the judge was internally inconsistent
in referring in two instances to the programme being false in relation
to the state of the evidence available to those making it, but later
saying that part of the defamatory sting of the article was that the
plaintiff was in part responsible for putting out a fundamentally false
accusation. It is submitted that the sting of the article must lie in
the programme makers' handling of the information which they have, and
not in the absolute truth of what is said.
| 58. |
It is submitted that the judge failed to confine the issues to what was
essential. Not one of the 15 people named in paragraph (10) of the
particulars of justification was named in or identifiable from the
programme. Yet the defendant is apparently proposing to lead evidence
from all or most of them. It is submitted that the case should
concentrate only on an investigation of the plaintiff's integrity and
professionalism, and that that requires an examination of the evidence
gathered by his team and the checks made on that evidence and any areas
which they neglected to look into.
| 59. |
As to delay, it is submitted that the defendants must have taken a
positive decision when they originally served their defence in November
1996 not to plead a case that the central thesis of the programme was
false. It is suggested that they had enough material then to plead
that case had they decided to do so. The re-amendments were largely
based on analysing Sands' evidence recorded on the audio tapes and
video tapes, which were available to the defendants in March 1997.
They finally produced their draft re-amendment in April 1998. The
plaintiff challenges Eady J's finding that the trial date was not
jeopardised by the re-amendments. It would have been foolhardy and
contrary to practice for the plaintiff's advisors to prepare to deal
with matters raised by the proposed re-amendments before permission had
been given for them to be made. It is submitted that amendments which
require extensions of time which themselves involve the adjournment of
a fixed trial date should be granted only as a last resort.
| 60. |
As to overreaching, the plaintiff relies on the timing of the
pleadings, the proposed amendments and of the exchange of witness
statements for a submission that the defendants must have exchanged
witness statements on a false basis. They ought to have applied for an
extension of time for exchanging witness statements linked to a date
when they would have been ordered to produce their proposed
re-amendments.
| 61. |
It is submitted on behalf of the defendants that as a matter of law a
defendant can justify words complained of in a libel action on any
meaning defamatory of the plaintiff which the words are reasonably
capable of bearing, provided that the issues and evidence are confined
to what is necessary for a fair determination of the dispute between
the parties. It is submitted that, in considering the proper ambit of
the real issues, it is crucial to assess the range of potential
defamatory meanings. The attitude of the plaintiff is also relevant,
but it is important that the plaintiff should not obtain vindication on
a false basis. A defendant should generally not be deprived of
advancing his full defence assuming that it is otherwise a proper plea.
It is submitted that the essential test on granting leave to amend is
whether in all the circumstances it is fair to do so. It is pointed
out that a defendant is obliged to plead all facts relied on in
mitigation of damages. It is submitted that the Court of Appeal will
only interfere with the exercise by a judge of his discretion to allow
an amendment in exceptional circumstances and where there is an error
of principle.
| 62. |
The defendants submit that the judge was correct to conclude that part
of the defamatory sting of the article is that the plaintiff was in
part responsible for putting out a fundamentally false accusation of a
conspiracy to murder. The judge was correct to say that this was
central to the justification. It is submitted that it is impossible to
sever the question whether the public was hoaxed or deceived by the
broadcast and the nature and extent of the plaintiff's responsibility
for that hoax, from the question whether what the public were told in
the programme was untrue. The latter question arises from the way in
which the plaintiff has presented his case as to meaning. Mr Caldecott
submits that it is not possible to divorce recklessness from its
consequences. The plaintiff's own pleaded meaning itself embraces a
complaint that the article portrayed the programme as deceiving the
public. The public were not, it is submitted, deceived about the
quality of the journalism, but rather as to the truth of the
programme's thesis. This illustrates the unreality of seeking to
exclude proof of the falsity of the programme's charges from a
justification that the plaintiff recklessly deceived the public as to
the truth of the programme's thesis. Further, the scope of the
particulars of justification which are not under appeal is wide and
there is no coherent basis for distinguishing them from the three
comparatively short paragraphs which are under appeal.
| 63. |
It is submitted that Astill J's decision did not limit the scope of
permitted justification in the way contended for. Astill J's use of
the term "recklessness" derived from the defendants' pleaded meanings.
From the beginning of the action these included allegations that the
film was "inaccurate and unreliable", "almost certainly untrue", and
based on "largely unsubstantially uncorroborated and incredible
evidence of one man". It is submitted that Astill J. did not rule that
the words complained of could only mean that the plaintiff had
recklessly failed to prevent Mr Hamilton and Mr O'Hagan from
perpetrating a hoax. His ruling was that the words were capable of
bearing the meanings defamatory of the plaintiff pleaded in the
defence.
| 64. |
It is submitted that there is a compelling public interest not to limit
the defence of justification artificially. The sting of the alleged
libel is not limited to the way in which the plaintiff undertook his
journalistic research without reference to the truth or falsity of the
subject of the research. The research material is certainly relevant
in judging culpability, but so too is what the journalist did not
bother to investigate or research and the potential impact of that
material on the veracity of the allegations. The court should be
cautious about ruling out at this stage matters which are relevant to
Sands' credibility as a source for the programme.
| 65. |
The defendants submit that the plaintiff himself advanced a positive
case that the contents of the programme were true in his original reply
and in witness statements served on his behalf and he should not now be
allowed to contend that these matters are irrelevant. It is suggested
that even in the amended reply there remain allegations that Sands was
telling the truth, so compelling (on the plaintiff's case) was his
evidence and the corroboration for it.
| 66. |
The defendants further contend that the particulars under consideration
are relevant to their pleaded case on causation of damage which is not
under appeal. They point to the fact that the plaintiff claims large
sums as special damages and to what the plaintiff himself said in his
book that, if the allegations in the programme were false, his career
in journalism would, he believed, effectively be over. Whatever the
plaintiff may now say, he has repeatedly said that it was the attack on
the truth of the programme's central thesis as to the existence of the
Committee which damaged his career as a journalist. Further the
plaintiff's state of mind and actions after he knew the contents of the
defendants' witness statements are relevant to the question whether he
acted responsibly in broadcasting the programme without making
inquiries of those whom Sands named.
| 67. |
The defendants submit that there is no ground for interfering with the
judge's discretionary decision. The judge found that the introduction
of the new material pleaded by re-amendment was not a sufficient ground
for postponing the trial date of October 1998. His finding that there
was no overreaching was, it is submitted, a proper finding after
careful consideration of the documents and the procedural history.
This should be considered in the light of the point that the truth or
falsity of the programme was put in issue by the plaintiff's own
pleaded case and witness statements as they stood at the time of the
application to re-amend.
| 68. |
It is submitted that there is no inconsistency in the judge's reasons
and that the judge was fully aware of the need to focus on the real
issues.
| 69. |
As to the disputed particulars, the defendants submit that paragraph
(10) relies on the inherent improbability of Sands' thesis in the light
of the background of the alleged Committee members. The fact that
almost all those identified by Sands were, on the defendants' case,
respectable members of the Protestant community was in itself a
powerful reason for doubting his allegation. Their standing also goes
to the culpability of the failure to put the allegations to them before
the broadcast - an allegation made in particulars (10B) which is not
challenged. It also bears on the defendants' case that a false
impression was given in proceedings before the Divisional Court that
Sands' allegations had been exhaustively checked. It is submitted that
it is illogical to exclude paragraph (10) while leaving in paragraphs
(10B) and (10C). Paragraph (10A) is central to the defendants' case
that the thesis put forward in the programme was false.
| 70. |
Paragraph (14) of the defendants' re-amended particulars refers to the
plaintiff's book recently published in the US. It is submitted that
proof that the plaintiff has continued to make the same allegations as
were made in the programme and has publicly named the individuals
implicated by Sands is directly material to the plea of recklessness
and the wide meaning pleaded by the plaintiff as to his general
unsuitability to report on matters such as those in the programme.
| 71. |
On the subject of hardship, the defendants submit that, at the time
that Eady J. was considering the proposed re-amendments, the plaintiff
was asserting that the Committee thesis was true. The plaintiff has
continually and exhaustively researched the subject matter of the
programme and has written a book in which he states that he has
evidence to prove that the Committee thesis is true. In these
circumstances, if there is a case and evidence to that effect, it ought
to be readily available to the plaintiff to put in cross examination to
the individuals named in paragraph (10) of the defendants' particulars.
It is submitted that no particular witness or new line of enquiry were
put before Eady J. as a reason for postponing the trial date. No
request for particulars of the re-amendments has been served or
referred to in correspondence since the hearing before Eady J.
| 72. |
Discussion
| 73. |
Legal principles relevant to this appeal include:
| 74. |
|
|
(a) a defendant is entitled to seek to justify any meaning defamatory
of the plaintiff which the words complained of are reasonably capable
of bearing, but may not seek to justify a separate and distinct meaning
of which the plaintiff does not complain - see for example Polly Peck v Trelford [[1986] Q.B. 1000 at 1032].
| |
(b) according to historic procedure, the defendant must give proper
particulars of the facts on which he relies to justify the meaning for
which he contends. I say "according to historic procedure" because, in
my view, the procedure as it has been understood and used is often
unsatisfactory. It will be a matter for future consideration whether
the procedure should be reconsidered in the light of the litigation
culture which the Civil Procedure Rules embody. It may in particular
no longer be tolerable in libel actions to have excessively long
particulars of justification, which often (as in this case) give rise
to expensive and time consuming adversarial pre-trial contests. Rather
perhaps should the particulars succinctly set out the scope of the
intended justification, leaving the detail to be given once only in
witness statements.
| |
(c) defendants' particulars of justification and libel cases generally
should be strictly confined to those matters which are essential to the
proper disposal of the real issues between the parties - see Polly Peck[
at 1021] and Rechem International v Express Newspapers [(unreported)
12.6.92 C.A. at p. 19 of the transcript. This may mean cutting out
peripheral matters the burden of whose investigation is
disproportionate to their importance. On the other hand,
]| |
(d) the action should be so structured that the defendant is not
prevented from deploying his full essential defence and so that the
plaintiff, if he wins, will obtain proper vindication upon a proper
basis - see
Basham v. Gregory [(unreported) 21.2.96 C.A. at pages 10 and 11]
of the transcript.
| | | |
| 75. |
The contest before Eady J. was wider than the contest in this court.
For the purposes of this appeal, in my judgment the questions are:
| 76. |
|
|
(a) whether the defendants' amended Lucas-Box meaning is a defamatory
meaning which the words complained of are capable of bearing - this to
be judged in the light of Astill J.'s decision, which neither party
appealed or now seeks to challenge;
| |
(b) whether the particulars which are challenged are legitimate
particulars in support of the defendants' pleaded meaning; and
| |
(c) if the defendants succeed academically on (b), whether the
particulars (or the meaning) should nevertheless be excluded or
curtailed for reasons of delay, overreaching, proportionality or good
case management.
| | |
| 77. |
In my judgment, the article itself, whose text is, as so often, in
danger of being submerged in meanings derived from it by lawyers, comes
close - I am inclined to say very close - to asserting that the
programme's central thesis was untrue. I put it in these terms, since
for present purposes, there is an issue on the pleadings which it is
not for this court to determine finally. But the article says that the
programme was "little more than a collage of unsubstantiated rumours
and fabrications" and the plain nature of the "hoax" was that it was a
deception of the viewing public because the main content of the
programme was, for the reasons explained, probably untrue. I accept
that in some circumstances a publication that the content of a
programme is untrue may not be defamatory of the programme makers. But
I consider that in this instance it adds to the defamatory sting to
say, not only that main content of the programme was based on obviously
worthless evidence, but that it was, or probably was, untrue.
| 78. |
Accordingly, in my judgment, Eady J. came to the correct general
conclusion as to meaning. I further consider that there is little
material difference between a charge of recklessness in broadcasting a
programme whose main thesis was "almost certainly untrue" and where it
was "in substance untrue". The second of these is slightly stronger
and slightly more critical of the plaintiff. It is not less serious
than the meaning which Astill J. permitted to remain. If anything, it
is more serious.
| 79. |
Once it is seen that the re-amendment relating to the truth of the
programme's thesis was permissible, I consider that the other changes
to the defendants' Lucas-Box meaning were no more than tidying up,
legitimate elaboration of the main theme or unobjectionable response to
the plaintiff's own pleaded meaning.
| 80. |
The truth or falsity of the main thesis of the programme has been a
part of the battleground in these proceedings from the start. The
plaintiff's letter before action dated 16th August 1996 stated that
"Inevitably the claim that [the plaintiff] had deliberately perpetrated
a hoax and deceived Channel 4 into broadcasting a false and fabricated
allegation caused commissions to dry up ...". The plaintiff's own
pleaded meaning, with its reference to the "documentary ... making
allegations of the most serious kind, of an official conspiracy to
murder republicans in Northern Ireland, which was in fact a
fabrication", embraces the meaning that the programme's main thesis was
untrue. I am not persuaded by Mr Price's submission that "fabrication"
here is to be read as confined to fabrication of the source material in
fact relied on. It is accepted that the plaintiff's original reply
contained significant material to the effect that the thesis was true.
The defendants' original meaning came close to asserting that the
thesis was untrue. It included that it was "almost certainly
untrue".
| 81. |
Since, as I consider, Eady J. reached the correct general conclusion as
to meaning, paragraphs (10) and (10A) of the defendants' re-amended
particulars were, subject to questions of proportionality, case
management and delay, permissible. Mr Price for practical purposes
accepts that the particulars in paragraph (10) were within the ambit of
the defendants' original Lucas-Box meaning as being particulars of
checks which it is said the plaintiff should have made. He submits
nevertheless that they should not be permitted because it would in
practice not be possible to draw a line beneath paragraph (10), so as
to exclude paragraph (10A). I agree that it would not be possible to
draw such a line. But that would lead me to the conclusion that
paragraph (10A) was permissible, not that paragraph (10) should be
excluded. This may be illustrated from the opening words of paragraph
(10), which alleges that the plaintiff obtained no, or no proper,
corroboration of the claims made by Sands and that the most basic
checks were not carried out. The particulars then give details of
people said in the dossier submitted to the RUC to have been members of
the Committee. The fact that the people referred to in paragraph (10)
were not named in the programme does not help Mr Price's submission,
since their names were given by Sands to the programme makers who were
therefore in a position to make checks about them. Their status in
society and evidence they might give about whether it was true that
they were members of the Committee is relevant to the questions both
whether the plaintiff made proper inquiries and whether the programme's
thesis was probably untrue. It would be quite impractical to draw a
line excluding evidence to the effect that the thesis was, for these
people, untrue. This would be so, in my view, even on the original
Lucas-Box meaning.
| 82. |
As I have said, Mr Price for practical purposes accepted that the
original Lucas-Box meaning would sustain particulars that the
programme's thesis was untrue, but he told us that the plaintiff was
reluctantly prepared to accept the position when there were then no
particulars to the effect that the thesis was in fact untrue. He,
again for practical purposes accepts that his submission here needs to
be that the additional particulars should have been disallowed on
general grounds, not because they particulars which do not go to
justify the defendants' original or amended Lucas-Box meaning. Although
Mr Price's written skeleton tended to disclaim reliance on the
plaintiff's impecuniosity, he stressed orally what he submitted was the
unduly wide scope of the evidential inquiry which the amendments would
engender. He referred to Part 1 of the Civil Procedure Rules for the
court's duty to deal with cases justly including, so far as is
practicable, ensuring that the parties are on an equal footing and
dealing with the case in ways which are proportionate to the financial
position of each party. The court is also required to deal with the
case in ways which are proportionate to the its importance and
complexity. This is, of course, an appeal from a decision made well
before the Civil Procedure Rules came into effect. But even so, I
consider that CPR Part 1 embodies important considerations which were in
substance already part of the proper approach to the conduct of libel
actions when Eady J. made his decision. As with all actions, libel
actions should by proper case management be confined within manageable
and economic bounds. They should not descend into uncontrolled and
wide ranging investigations akin to public inquiries, where that is not
necessary to determine the real issues between the parties. The court
will, now as when Eady J. made his decision, strive to manage the case
so as to minimise the burden on litigants of slender means. This
includes excluding all peripheral material which is not essential to
the just determination of the real issues between the parties, and
whose examination would be disproportionate to its importance to those
issues. It does not, in my judgment, extend in this case to excluding
potentially important evidence which is central to a legitimate
substantial defence. It is also, in my view, relevant to the question
of proportionality that the truth of the programme's main thesis was,
as I have said, part of the plaintiff's own original battleground.
| 83. |
I accept that the truth or falsity of the existence of the Committee
which Sands alleged existed is a wide subject. But I think that Mr
Caldecott is correct in saying that it is not perhaps as wide as Mr
Price would have it. It will be for the trial judge to direct the jury
(if there is one) what the issues at the end of the evidence are and
what questions of fact they have to decide. I do not wish or intend to
constrain those directions at this stage. But the evidence may well be
properly and proportionately confined to the question whether the
Committee and conspiracy which Sands described truly existed, and may
not extend to the much wider question whether there was any conspiracy
of the kind alleged between 1989 and 1991. It may also be appropriate
to direct the jury that, although it would be open to them to decide on
the evidence whether it is true that the Committee to which Sands
referred did or did not exist, they may feel that it is unnecessary to
reach a conclusion on that question in order to decide whether the
sting of the libel is justified. This, as I say, will be for the judge
to decide at the conclusion of the evidence. But its possibility
illustrates the fact that particulars of justification may herald
evidence which is properly admissible in aid of a case of justification
without necessarily raising a distinct issue which it is necessary for
the tribunal of fact to decide absolutely. Equally, and bearing in
mind that the burden of proving justification is on the defendant,
particulars of this kind may not cast a burden on the plaintiff to make
a positive case in an attempt to show absolutely that the whole of the
defendants' evidence is incorrect. If the plaintiff chooses to
shoulder that burden, that is another matter.
| 84. |
There is in my view considerable force in Mr Caldecott's twin
submissions that the defendants should not in this case be deprived of
an important element of their case of justification, and that there is
a real risk that vindication of the plaintiff in a case from which this
element had been excluded would nevertheless be seen as vindication of
his thesis.
| 85. |
Paragraph (14) of the particulars refers to the plaintiff's book. It
is inevitable that the plaintiff will be cross-examined about the book
and in my view no practical harm is caused by its featuring in the
particulars. The fact that he has persisted with allegations which the
defendants say are groundless and untrue may, if the defendants are
found to be substantially correct, be relevant to whether the plaintiff
was reckless. The particulars may also be relevant to the
quantification of damage. In my view, Eady J. was correct not to
exclude this paragraph.
| 86. |
As to delay and overreaching, there is in my view no persuasive basis
for attacking Eady J.'s decisions. Although late amendments which
cause a fixed trial date to be vacated should only be rarely allowed,
the judge was entitled to conclude that these amendments were not a
reason for delaying the trial, which was adjourned for other reasons.
In reaching that conclusion, he no doubt took account of the fact that
the original particulars of justification were extensive and would
alone have required extensive preparation. The submission as to delay
is in any event weaker in this court where the amendments complained of
are limited to the Lucas-Box meaning and three paragraphs of the
particulars only.
| 87. |
Conclusion
| 88. |
For these reasons, I consider that Eady J. reached the correct
conclusions. I would dismiss this appeal.
| 89. |
LORD JUSTICE JUDGE:
| 90. |
I agree with the judgment given by May LJ and the
judgment to be given by Lord Woolf MR. There is nothing I can usefully
add.
| 91. |
LORD WOOLF, MR:
| 92. |
I am in agreement with the judgment which has been
given. I give an additional judgment to draw attention to broader
issues to which this appeal gives rise.
| 93. |
The first of those issues is the impact of the Civil Procedure Rules on
appeals from decisions of lower courts given, as in this case, prior to
26 April 1999. The transitional provisions contained in the Practice
Directionpdp-51supplementing CPR Part 51
do not expressly deal with appeals. However, the
general approach should be obvious. In reviewing a decision made prior
to 26 April 1999, this court will not interfere after that date, if it
would not have done so if the appeal had been heard prior to that date.
This court only interferes with a decision of a court below if that
decision was wrong. If the decision was not wrong prior to 26 April
1999, it does not become wrong for the purposes of an appeal as a
result of the subsequent coming into force of the CPR. However, if
the decision is one with which this court would have interfered prior
to 26 April 1999, in deciding what order should be made for the future,
this court will take into account, in particular, Part 1 of the CPR.
| 94. |
The next point to which I would refer arises out of the pleadings in
this case. I do not in my following comments suggest that the existing
pleadings are other than in the form which is commonly adopted by libel
practitioners. However, undoubtedly considerable time, energy and money
have been incurred in producing those pleadings and the question that
arises is whether this scale of expenditure is necessary or desirable.
An indication of the scale is provided by the fact that the reply is
already in a re-amended form. There have been two substantial
separate hearings before High Court judges solely concerned with
pleading issues. I refer to the judgment of Astill J of 5 February
1997, as to the meanings that the words complained of are capable of
bearing, and the judgment of Eady J of 30 July 1998 which gives rise to
this appeal.
| 95. |
The need for extensive pleadings including particulars should be
reduced by the requirement that witness statements are now exchanged.
In the majority of proceedings identification of the documents upon
which a party relies, together with copies of that party's witness
statements, will make the detail of the nature of the case the other
side has to meet obvious. This reduces the need for particulars in
order to avoid being taken by surprise. This does not mean that
pleadings are now superfluous. Pleadings are still required to mark out
the parameters of the case that is being advanced by each party. In
particular they are still critical to identify the issues and the
extent of the dispute between the parties. What is important is that
the pleadings should make clear the general nature of the case of the
pleader. This is true both under the old rules and the new rules. Paragraph 9.3 of the
Practice Directionpdp-16supplemental to CPR Part 16 requires, in defamation proceedings, the facts on which a
defendant relies to be given. No more than a concise statement of those
facts is required.
| This Paragraph is referred to in: |
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