Beta Construction Ltd v Channel Four Television Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE RALPH GIBSON,LORD JUSTICE NEILL |
| Judgment Date | 03 November 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1103-2 |
| Docket Number | 89/1049 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 November 1989 |
and
and
[1989] EWCA Civ J1103-2
Lord Justice Neill
Lord Justice Ralph Gibson
Lord Justice Stuart-Smith
89/1049
1987-B-No. 6639
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL. CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE MICHAEL DAVIES
Royal Courts of Justice
MR J. PREVITE, Q.C. (instructed by Messrs Freedman & Co.) appeared on behalf of the appellants (plaintiffs).
MR R. RAMPTON, Q.C. and MR P. MOLONEY (instructed by Messrs Goodman Derrick & Co.) appeared on behalf of the respondents (defendants).
This is an appeal from an order of Michael Davies J. made on 16th June 1989 whereby he ordered trial by judge alone on the issue of damages in the plaintiffs' action for damages for libel. The plaintiffs appeal against that order by leave of this court; they seek an order for trial by judge and jury.
The plaintiffs are heating and plumbing engineers and since 1983 their business has increasingly involved the removal of asbestos from buildings. The second plaintiff is the Managing Director of the plaintiff company. The work of removing asbestos is hazardous. Inhalation of asbestos dust has been known for many years to cause asbestosis and cancer. Stringent precautions need to be taken to protect not only the workforce engaged in the stripping operation but also members of the public who may be affected by it. Contractors who undertake such work have to be licensed by the Health and Safety at Work Executive. Much of the work is done for local authorities who have lists of approved contractors. Where the work is done for private customers, those customers will often seek the advice of local authorities as to choice of a suitable contractor.
On 11th October 1987 the first defendant broadcast on T.V. a programme made by the second defendant. It was concerned with the activities of contractors who stripped asbestos from buildings. By paragraph four of their amended statement of claim the plaintiffs alleged that:
"The said words in their natural and ordinary meaning and in the context of the said broadcast meant and were understood to mean that the plaintiffs:
(i) Are cowboys who do not have the skill, qualifications, or integrity to carry out the work of removing asbestos competently and have, in consequence, exposed their employees and the public, including children, to high risk of death from cancer:
(ii) When carrying on the work of removing asbestos at Malmesbury Infants School, Coborn Street, London:
(a) Failed to exhibit any warning notices and thereby exposed children to risk of cancer from asbestos dust;
(b) Failed to remove from a classroom dust grossly contaminated with asbestos."
By their defence the defendants pleaded justification and fair comment. The case was due for trial by judge and jury and might have come for trial before the end of the current term. However, on 13th June 1989 the defendants' solicitors wrote admitting liability. They admitted that the words were defamatory of and referred to both plaintiffs. At that stage, however, they did not admit the extent to which the second plaintiff was identified, he was not in fact referred to by name, or that the words complained of had the meaning alleged in paragraph 4 of the amended statement of claim, as opposed to such lesser or different defamatory meaning as the court might find. They specifically abandoned the defence of fair comment and justification. They proposed to offer an apology and take such steps, as writing to local authorities and making a statement in open court, as might mitigate the damage. Finally, they proposed that the issue of damages should be determined by Master or Judge alone. On the same day they issued a summons for judgment to be entered for the plaintiffs and for damages to be assessed by a Master or Judge alone.
In the course of the hearing before Michael Davies J. the defendants' counsel, during his reply, conceded that the words bore the meaning alleged in paragraph 4 of the amended statement of claim. That being so, there remained no issue at all on liability. The extent of the reference to the second plaintiff being relevant only to the quantum of damage.
The question of mode of trial in libel actions is determined by the Supreme Court Act 1981 (the Act) s. 69, which provides:
"ss. (1) Where, on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue—
(a) a charge of fraud against that party; or
(b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or
(c) any question or issue of a kind prescribed for the purposes of this paragraph,
the action shall be tried with a jury, unless the court is of opinion that the trial requies any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.
ss. (3) An action to be tried in the Queen's Bench Division which does not by virtue of subsection (1) fall to he tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury."
An application for trial by jury must be made before the place and mode of trial is determined on the order made on the summons for directions. See s. 69(2) of the Act and Order 33 Rule 5 and Cropper v. Chief Constable of South Yorkshire Police [1989] 1 W.L.R. 333. If an order for trial by jury had been made on such an application it can be varied to trial by judge alone under the provisions of Order 33 Rule 4, which provides:
"(1) In every action begun by writ, an order made on the summons for directions shall determine the place and mode of the trial; and any such order may be varied by a subsequent order of the Court made at or before the trial.
(2) In any such action different questions or issues may be ordered to be tried at different places or by different modes of trial and one or more questions or issues may be ordered to be tried before the others."
And it is under this order that the defendants sought the change in the mode of trial. The basis of the application is that the trial of the first plaintiff's claim for damages requires prolonged examination of documents and accounts which cannot conveniently be made with a jury. As originally pleaded the amended statement of claim merely claimed, on behalf of both plaintiffs, damages for libel. However, on 24th February 1989 the plaintiffs served voluntary particulars of the damage claimed as follows:
"(i) In the period 1st November 1987 to 31st October 1988 the plaintiff company suffered a loss of net profit of £109,672 after deduction of corporation tax.
(ii) The estimated loss of net profit after deduction of corporation tax for the next nine years is at the rate of £109,672 p.a., excluding any allowance for growth of business or inflation. Calculation of the loss pleaded in paragraph (i) above and the estimated future loss in (ii) is fully particularised in the report of Casson Beckman dated 14th February 1989.
(iii) The total loss of net profit after deduction of corporation tax is therefore estimated at £1,096,720 for the period 1st November 1987 to 31st October 1997."
The report which acccompanied the particulars, which was referred to as the Creed report, was 16 pages in length and was accompanied by appendices and schedules running to 65 pages. The nature of the underlying documents upon which the report was based can be appreciated from paragraph 3(3) of the report:
"(a) review of the ARCA (Asbestos Removal Contractors Association) handbook at November 1988;
(b) review and analysis of microfiches on the following companies: D. H. Contracts Limited; The Forest Insulation Company Limited; Asbestos Stripping Services Limited; Harp Asbestos Removal Limited and Silverdell Construction Limited.
(c) a review of the 'quotations for new work' schedules prepared by Beta Construction Limited;
(d) analysis of the financial statements for the periods from 1st November 1983 to 31st October 1987 and the draft profit and loss account, and balance sheet to 31st October 1988;
(e) review of the transcript and video of the Channel 4 programme;
(f) review of the sales ledger control account prepared by Ashton Hart & Co., auditors to the company, in respect of the year to 31st October 1988;
(g) review of Beta Construction Limited's sales day book for the period December 1985 to January 1989;
(h) a review of the sales invoices raised, for work done for the G.L.C. and its principal contractors;
(i) examination of Beta Construction Limited's summary of the sales ledger; and
(j) review of the sales ledger for the period 1984 to 1988 inclusive."
In summary, the report seeks to show:
1. That there was a substantial fall in turnover in the Company's business in the year following the programme.
2. Based upon the previous progress of the company and five identified competitors, the plaintiffs could have expected an increase in turnover in that year.
3. That the loss of profit on such increased turnover was £109,672 and that such loss is attributable to the programme.
4. That the market in asbestos stripping will increase over the next 5 years and thereafter for the following 5 years remain constant.
5. That the plaintiff company's loss over the next ten years can be quantified at £109,672 per year.
The defendants challenge all these conclusions and many of the assumptions upon which they are made. They do so by means of a report of Mr Watson, a partner of the firm of chartered accountants Stoy Haywood....
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