Armstrong v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 29 July 2005 |
| Neutral Citation | [2005] EWCA Civ 1007 |
| Docket Number | Case No: A2/2005/0306 and 0306(B) |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2005 |
[2005] EWCA Civ 1007
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL APPEALS DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Justice Eady
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
Vice-President of the Court of Appeal (Civil Division)
Lord Justice Tuckey and
Lady Justice Arden
Case No: A2/2005/0306 and 0306(B)
Andrew Caldecott QC and Heather Rogers (instructed by Gillian Phillips of Times Newspapers Ltd) for the Appellants
Richard Spearman QC and Matthew Nicklin (instructed by Schillings) for the Respondent
INDEX
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|
| Paragraph |
| Part 1 | Introduction | 1 |
| Part 2 | The three defendants | 3 |
| Part 3 | The dialogue between the parties before the article was published | 9 |
| Part 4 | The Sunday Times article | 15 |
| Part 5 | The defence of qualified privilege and the response to the claim for aggravated damages | 25 |
| Part 6 | The claimant's application pursuant to CPR 3.4(2) and CPR Part 24 | 31 |
| Part 7 | The judge's ruling on meaning | 36 |
| Part 8 | The claimant's skeleton argument, served on 3rd December 2004 | 40 |
| Part 9 | Other features of the hearing before the judge | 48 |
| Part 10 | Qualified privilege: the judge's application of the Reynolds criteria | 54 |
| Part 11 | The arguments on the appeal | 70 |
| Part 12 | Conclusions | 76 |
APPENDIX
| A. The VO2 max issue | ||
| (1) | The judge's ruling | 86 |
| (2) | The claimant's case | 87 |
| (3) The defendants' case | 89 | |
| (4) | Conclusion | 93 |
| B. EPO: its performance enhancing effects and the risks it creates | ||
| (1) | The judge's ruling | 94 |
| (2) | The defendants' case | 95 |
| (3) | The claimant's case | 96 |
| (4) | Conclusion 97 | |
| C. The alleged conversation about EPO with the Motorola team | ||
| (1) | The judge's ruling | 98 |
| (2) | The defendants' case | 102 |
| (3) | The claimant's case | 104 |
| (4) | The defendants' response | 109 |
| (5) | Conclusion | 110 |
| D. Ms O'Reilly's evidence | ||
| (1) | The judge's ruling | 111 |
| (2) | The defendants' case | 114 |
| (3) | The claimant's case | 115 |
| (4) | Conclusion | 120 |
Part 1 Introduction
This is an appeal by the defendants Times Newspapers Ltd and others, and a cross-appeal by the claimant Lance Armstrong, from parts of an order made by Mr Justice Eady at a case management conference in this libel action in December 2004. The judge struck out the defendants' pleas of qualified privilege and their statutory defence under section 5 of the Defamation Act 1952, and severely truncated their particulars of justification. He also reduced the range of meanings on which they sought to rely, and dismissed their applications for security for costs and a cost-capping order. On their appeal the defendants seek to reinstate their pleas of qualified privilege and to restore a few of the many particulars of justification which the judge struck out. The claimant, on the other hand, wishes this court to overrule the judge in relation to a few of the particulars of justification which he allowed to remain in the pleadings.
In order to understand the issues we have to decide, I must explain something of the history leading up to the publication of the article complained of, which appeared in the sports section of The Sunday Times on 13 th June 2004. I take it largely from the assertions contained in the defence, which are assumed to be true for the purposes of this pre-trial skirmish.
Part 2 The three defendants
The second defendant, David Walsh, has worked as a sports journalist since 1978. He first covered professional cycling in 1980, and he has covered the Tour de France in most years since 1985. He wrote a biography of Sean Kelly (then the world's top ranked cyclist) in May 1985, and a biography of Stephen Roche in 1987. In 1993 he wrote a book called "Inside the Tour de France": he interviewed Mr Armstrong in connection with that book. In 1986 he became the chief sports writer for an Irish newspaper, for whom he covered the 1988 Seoul Olympics and the controversy surrounding Ben Johnson's failed drug test. Eight years later he covered the 1996 Atlanta Olympics for The Sunday Times, and he was one of three journalists who expressed doubts about the Irish triple gold medal winner Michelle Smith, who failed a drug test two years later and was then banned from competitive swimming for four years.
Mr Walsh has for many years been aware of the problems of drug-taking in sport, and the ability of doping to destroy sport. He sees his job as a journalist covering sporting events not as a cheerleader, but as someone who asks questions. As a result of what he has learned over the years, he believes that the abuse of drugs is destructive to sports, that it is a pervasive problem, and that it is likely to have grave consequences for sport in the future.
Mr Alan English, the third defendant, has worked for The Sunday Times for nine years. In June 2004 he was its deputy sports editor. In 1999 he edited a best-selling book, The Sunday Times Sporting Century. This book featured his choice of the 50 most momentous sports stories of the 20 th century. Three of these stories related to the use of drugs in sport. They included the death of the cyclist Tom Simpson. In his introduction to the book Mr English wrote: "as the new millennium approaches, the problem of drugs has never been more acute." He believes that newspapers should address this issue.
From 2003 onwards Mr Walsh was concerned with a project to produce the book which was ultimately called " L.A. Confidentiel—les secrets de Lance Armstrong". The book was published in France on 15 th June 2004. His co-author, Pierre Ballester, is well-informed and authoritative on cycling matters, and in particular on the problems associated with doping, and Mr Walsh had many discussions with him in which he learned a great deal about medical and other expert opinions relating to doping. He was also aware of the results of a statistical analysis of Mr Armstrong's performance conducted by Antoine Vayer, a cycling expert, which gave rise to questions about how Mr Armstrong had achieved and maintained such high performance levels.
In the course of his research for the book, Mr Walsh interviewed a number of named sources, and one confidential source. He also drew on discussions he had had with many people concerned with different aspects of the cycling industry over the years. Some of these discussions were on a confidential basis, with confidential sources. Many of them were with professional cyclists and those who had worked with them, and from them Mr Walsh learned a lot about the doping culture within professional cycling, and the pressures put upon riders to join that culture in order to achieve results. The team doctor of Motorola, the first professional cycling team which Mr Armstrong joined, told him how he had been concerned about the doping culture in 1994: he had had to tell the team to focus on training, and not on taking pharmacological remedies.
Mr Walsh also learned about pharmacological advances from medical and other experts. They described how these advances had led to the introduction of ever-more sophisticated performance-enhancing products. He had followed closely the investigation into the activities of a doctor called Michel Ferrari and his prosecution by the Italian authorities in 2001. His sources were well-informed, authoritative and reliable. They did not have any axe to grind, so far as the defendants were aware, either in connection with Mr Armstrong or at all.
Part 3 The dialogue between the parties before the article was published
Mr Walsh had interviewed Mr Armstrong a number of times over the years. He attempted to contact him prior to the publication of the Sunday Times article, in order to obtain his answers to certain questions and to record any other comments he might wish to make. On 19 th May 2004 he faxed a request for an interview to the office of Mr Armstrong's agent, Mr Stapleton. Mr Stapleton asked if he could provide a list of the questions he wished to ask. Mr Walsh agreed to do this, and then left a message on Mr Stapleton's cell phone asking him for his email address. He received no reply. On 28 th May he emailed Mr Armstrong directly. He explained that he had tried to get in touch with him through his agent, because he was doing research on both him and his team. In this e-mail he asked eight questions:
"Many people have made a link between cancer and doping problems. Did your cancer doctor or doctors react in this way when you met them?
I have heard you once admitted using performance-enhancing drugs to your cancer doctors?
Cycling is a sport where races have been bought and sold. Have you ever been involved in any way in a deal to buy off a member of an opposing team to help you win a race?
Witnesses claim you were involved in this kind of deal?
Witnesses claim they saw needle marks high up on your arm? What do you say about this?
Cycling specialists say needle marks on the arm are likely to have been caused by the injection of doping products? What's your reaction?
About your corticoid affair in the 1999 Tour de France, sources claim your positive test of July 4 was not caused by use of cemalyt cream but by a corticoid injection and that the medical prescription was anti-dated (sic). Do you still stand by your version?
During your years with the Motorola team (1992–96) sources say the issue of EPO use in the peloton was often discussed by team members, you included, and that there was a...
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