Alexander v Arts Council of Wales and another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE JONATHAN PARKER,LORD CHIEF JUSTICE |
| Judgment Date | 09 April 2001 |
| Neutral Citation | [2001] EWCA Civ 514 |
| Docket Number | Case No: A2/00/2885 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 April 2001 |
[2001] EWCA Civ 514
The Lord Chief Justice
Lord Justice May and
Lord Justice Jonathan Parker
Case No: A2/00/2885
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HON. MR JUSTICE EADY
Royal Courts of Justice
Strand, London, WC2A 2LL
Patrick Milmo QC and William Bennett (instructed by Reynolds Porter Chamberlain for the Appellant)
Thomas Shields QC and Timothy Atkinson (instructed by Edwards Geldard for the Respondents)
Facts
The Arts Council of Wales ("ACW"), the first defendant, is a non-departmental public body which distributes National Lottery grants and other funding from public sources to arts organisations in Wales. The second defendant, Joanna Weston, was until September 2000 ACW's Chief Executive. The claimant, Jan Alexander, is the Director of Chapter Limited ("Chapter"), a charity which owns and runs the Chapter Arts Centre in Cardiff. Chapter is chiefly concerned with the promotion and performance of contemporary art. The claimant's position is equivalent to that of a chief executive. Over a number of years, ACW has made substantial grants of public money to Chapter both towards the cost of particular projects and also for revenue funding.
In about 1996, Chapter formulated plans to build a new arts centre on a new site in Cardiff Bay. The estimated cost of this project was in excess of £5m. The claimant and Chapter were hoping to obtain a lottery grant to meet most of the cost. In September 1996, Chapter made a formal application to ACW for funds in the order of £60,000 for a feasibility study into this proposed project. The application was not promptly dealt with, but was deferred for various reasons. After more than a year without progress, the claimant in exasperation appealed under the ACW code of practice and sought a finding of maladministration. This complaint was rejected in April 1998, but the hope was expressed that it might be possible for an urgent decision to be made by ACW in July 1998 at least as to its priorities. The hope was also expressed that ACW's strategy for lottery funding might soon be in place.
The Lottery Act received the royal assent at the beginning of July 1998 after which ACW received its detailed instructions from the Government in relation to the distribution of lottery money. They had to develop a strategy for this. At one stage it was apparently envisaged that the strategy might be in place by the Autumn of 1998. It was in fact finally in place by early 1999. 4. From September 1997, ACW had introduced a three stage process for grant applications. This was well publicised in a document which stated that ACW would not consider large applications for grants towards construction projects until design plans had reached RIBA stage D. It was usual for applications for large projects to have three stages: (1) feasibility; (2) development; and (3) main project.
Chapter had sought additional funds from elsewhere and by March 1998 had obtained conditional offers of funding in excess of £1m. The main source of these funds was to be the European Regional Development Fund (ERDF). These funds would not be available indefinitely and the ERDF offer would lapse unless Chapter could be assured by the Autumn of 1998 that lottery funds would be available.
In June 1998, Chapter withdrew its original application for money to support a feasibility study. Instead it made a request in correspondence for ACW's Capital Committee to approve a commitment in principle to Chapter's project. The request was for a commitment in principle to a grant of £4.1m towards an estimated project cost of £5.8m, or £3.6m if the eventual total cost was £4.8m. Chapter's request meant that ACW were being asked to commit an amount that would be well in excess of half the funds available to it for the year for spending on the arts in Wales. It was also an unusual, if not unique, request because it asked for a commitment in principle in advance of the three stage process to which I have referred. It appears, however, that Chapter may have received some encouragement to make a request of this kind.
The request was considered by the Capital Committee of ACW on 25 th June 1998. The second defendant was present at the meeting. The request was in effect rejected although, since it was not a formal application, it was not dealt with in the same way as other applications. The minutes of the meeting record that members did not feel able to make the requested commitment in advance of an agreed strategy giving a clearer indication of the priority to be given to Chapter's request. The recommendation of the Capital Committee was considered at a meeting of ACW itself at Llandudno on 17 th July 1998, at which the recommendation of the Capital Committee was accepted. The second defendant was present at that meeting also. The claimant was told about this on 20 th July 1998 and was clearly upset. One consequence of the decision was that the conditional ERDF funding would be lost.
On 21 st July 1998, the claimant issued a press release strongly critical of ACW's decision. This led to an article in the Western Mail of 22 nd July 1998 under the headline "Anger as Arts Centre bid for Lottery cash rejected". The article said that ACW had turned down a £3.6m lottery application; that it meant that more than £1m of European money would be lost and hundreds of jobs could be put at risk; that the claimant had described the decision as "crazy" and accused members of living in a world of their own; and that it was understood that the application was rejected because ACW had decided to put a freeze on lottery applications from arts organisations based in Cardiff.
The second defendant regarded this article as misleading, in particular because it gave the impression that ACW had turned down a normal application rather than an unusual request to commit funds in principle; and because it did not say that ACW were being asked to commit well over half its annual available funds. The second defendant was giving a press briefing, as it happened, on the morning of 22 nd July 1998. She expected to be asked questions on the subject, and she was. She spoke for several minutes and some of those present took notes. There were subsequent press and broadcast publications of what she said.
The proceedings
In these proceedings, ACW and the second defendant are sued for slander and libel contained in those publications. There is a dispute as to precisely what she said and as to the accuracy of the reports of what she said. In his amended statement of claim, the claimant complains of the following words spoken by the second defendant at the press briefing:
"In this case we were asked to make a commitment in principle by the administrator/administrators of Chapter to a very large sum of money, and it was without that request being supported by a detailed development and business plan and all of the details that we always ask for before making a commitment to a large capital sum. It simply would not be a priority use of public money or accountable to make that commitment in principle. We have never done so, did not do so in this case and would not in the future."
The claimant attributes two possible meanings to that passage. The first is essentially innocuous and was scarcely supported at the trial as capable of carrying a serious defamation claim. The second meaning was as follows:
"In making such an application the plaintiff has shown himself to be reckless and/or negligent and/or incompetent in the performance of his job at Chapter and also as an arts administrator. Furthermore, it demonstrates that his attitude to the use of public funds is cavalier making him an unworthy custodian of them in his role as Director of Chapter."
The claimant also relies on five further press or broadcast publications deriving from the press briefing. The content of the reports vary somewhat in detail and in some instances have additional material from an interview of the second defendant by a BBC journalist, Nick Palit; and from Emyr Williams, Press Officer of ACW. For present purposes, these publications are, with one qualification, essentially the same and essentially the same meanings are attributed to them.
The qualification relates to a television broadcast on BBC Wales on 22 nd July 1998. The claimant by amendment alleges that, after the press briefing, the second defendant spoke with a BBC interviewer, Nick Palit, and that she said words to the effect that Chapter had not been given the money because they did not fill out the forms properly. The broadcast began with an introduction, written by Mr Palit, which ended with the words:
"However, the Arts Council say that they won't contribute because the grant application wasn't submitted properly."
This sentence is relied on as conveying what the second defendant had said and consequently as being a defamatory publication by her. The broadcast continued with Mr Palit saying that the Arts Council of Wales had refused to contribute, as they said they had received no formal application. The second defendant then said:
"What they were asking the Council to do was to make a commitment in principle to an amount of £3.8m. Now it would not be a proper use of public funds for the Arts Council to say "In principle we'll give you nearly four million pounds, and then come back and tell us what you're doing with it"."
In their defence, the defendants deny that the claimant has accurately recorded the substance of what the second defendant said. They deny the...
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