Bobolas v Economist Newspaper Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,LORD JUSTICE BALCOMBE |
| Judgment Date | 10 June 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0610-10 |
| Docket Number | 87/0595 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 June 1987 |
[1987] EWCA Civ J0610-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Lord Justice Lloyd
Lord Justice Balcombe
87/0595
and
MR DAVID EADY, Q.C., instructed by Messrs Allen & Overy, appeared for the Appellants (Defendants).
MR G. P. SHAW, instructed by Messrs Theodore Goddard & Co., appeared for the Respondent (Plaintiff).
We are very grateful to both counsel in this appeal. It is an appeal from a decision of Mr Justice Tucker given on 22nd May 1987 whereby he allowed the plaintiffs to make certain very late amendments to their pleadings in this protracted libel action. The trial started in February 1987 before Mr Justice Kenneth Jones and a jury. It lasted for forty-two days. At the end of the hearing the jury were unable to agree, so the judge ordered a retrial. The retrial is, as I understand it, due to start next week.
The appeal raises an interesting question of law as to the status of issues decided at the first trial, that is to say issues decided by the judge before the jury disagreed. The defendants say that the plaintiffs cannot re-argue those same issues. They rely on the doctrine of issue estoppel. The plaintiffs say that that is wrong—the trial starts again de novo. The issues decided at the first trial and any rulings given by the judge are, in the celebrated phrase of Lord Justice Asquith, "writ in water".
Before Mr Justice Tucker the argument turned largely on the question of law which I have mentioned. Before us that question of law has receded somewhat, but it is necessary to decide it all the same. The main argument before us has been that the judge erred in the exercise of his discretion. Mr Eady, who appears for the appellants, accepts that the burden in that respect will not be an easy one for him to discharge.
It is necessary now to give the briefest possible description of how the points for decision arise. The first plaintiff, Mr George Bobolas, is a Greek industrialist. He is also the majority shareholder in the second named plaintiff.
The second plaintiffs are the publishers of a Greek daily newspaper called To Ethnos which, being translated, means "The Nation". The defendants are publishers of The Economist Foreign Report.
In their issue of 29th April 1982 the defendants published a report about To Ethnos which the plaintiffs say is defamatory of them. In paragraph 4 of the statement of claim as originally served they say that the natural and ordinary meaning of the words published is:
"…that the Plaintiffs and each of them were publishing 'Ethnos' with a subsidy from Soviet Russia, and that they were not part of a free press but rather the mouthpiece of a communist and totalitarian state's propaganda machine."
I will return to paragraph 4 in a moment since it is one of the paragraphs which the plaintiffs now seek to amend, reluctant though they are to amend the natural and ordinary meaning of the words at this late stage of the proceedings.
In paragraph 7 the plaintiffs say that the natural and probable consequence of the publication was that other Greek newspapers would republish the libel as front page news, which indeed they did. The plaintiffs seek to amend that paragraph also, to which again I will return.
The defence and counterclaim was served in August 1982. It was originally a fairly simple affair. But it was amended in February 1985 to plead justification and has been re-amended on numerous occasions since then. In paragraph 5(a) of the defence the defendants gave notice that they will rely on Section 5 of the Defamation Act 1952, which I need not pause to read.
By their counterclaim the defendants retaliated in kind. They say that on 8th June 1982, some six weeks after the publication of which the plaintiffs complain, the plaintiffs published an article about the defendants, the natural and ordinary meaning of which is that The Economist Foreign Report is "used as a tool by the CIA for the purposes of propaganda and false information." They say the same about a much shorter article published on the following day, 9th June.
The plaintiffs, in their defence to the counterclaim served in November 1982, admitted that the plaintiffs and each of them were responsible for the publication of which the defendants complained. But they denied that the words bear the meaning alleged and they go on to say that in any event they were published as a reply to the attack made upon them. They can therefore rely on qualified privilege in English law.
Finally, in their reply the defendants say that the plaintiffs were activated by express malice.
The plaintiffs wish to amend their defence to the counterclaim so as to make it clear that, while they admit that Mr Bobolas published the words in question, nevertheless they deny that he is vicariously liable for the acts or omissions of the second plaintiffs' servants or agents. Mr Eady surmises, and I do not doubt that he is right, that that proposed amendment is not unconnected with the plea of express malice.
The plaintiffs also wish to amend the defence to counterclaim to plead certain specific provisions of Greek law which they say would provide them with a defence similar, although not in all respects identical, to the English defence of qualified privilege. In order to establish the defence in Greek law it would be necessary for them to show that they were, at the time of publication, in a state of "justified indignation".
That is an outline of the amendments sought. There are thus two amendments to the statement of claim and two to the reply and defence to counterclaim. They were all allowed by Mr Justice Tucker. I leave aside the other amendments which were unopposed before Mr Justice Tucker and which are not therefore the subject of any appeal to this court.
I will take the amendments in order, but before doing so it may be as well to deal first with the question of law raised in the appeal, even though it is no longer relied on by Mr Eady in relation to the first of the proposed amendments.
Mr Eady submits that the issues decided at the trial should be treated as binding between the parties, even though the trial was in the end inconclusive. He was unable to cite any direct authority in support of that proposition other than the decision of the Court of Appeal in the Fidelitas case (1966) 1 Q.B. 630 which does not, for the reasons which I shall mention later, throw much light on the present problem. Mr Eady says that he must in any event be right in principle. Interest reipublicae ut sit finis litium applies, he says, as much to issues decided in the course of litigation as it does to the final outcome. Thus if there had been a preliminary issue in this case which had been decided one way or the other nobody would suggest that it should be relitigated just because the judge has ordered a retrial. He says that the same must apply to issues decided by the judge himself in the course of the trial. Those decisions are unaffected by the fact that the jury subsequently failed to agree.
Mr Shaw on the other hand submits that the trial starts again de novo. That means what it says. Existing issues can be abandoned and fresh issues can be raised. Where the same issue arises in both trials, the judge at the second trial should not be hampered by any decision at the first trial. He should be free to decide the issue for himself.
In the case of Roe v Naylor to which he referred us, reported in (1918) 87 L.J.K.B. 958, the facts were that the plaintiff, a builder, bought some timber from a traveller employed by the defendants, a firm of timber merchants. The "sold" note bore a printed clause in very small print saying:
"Goods are sold subject to their being on hand and at liberty when the order reaches the Head Office."
The plaintiff, who was very short sighted, was unable to read the condition (so small was the print) even with his glasses on. Some of the goods were not in stock and were not therefore delivered. The plaintiff brought an action for nondelivery. The County Court judge decided in favour of the plaintiff. The Court of Appeal then ordered a retrial. At the retrial the County Court judge (it is not clear whether it was the same judge or a different judge) again decided in favour of the plaintiff. There was an unsuccessful appeal to the Divisional Court, and thence to the Court of Appeal. The Court of Appeal dismissed the appeal.
In the course of giving his judgment the Master of the Rolls said at page 963:
"…Counsel for the appellants sought to rely upon some finding of the judge in the first trial of the action.
In my opinion, he is not entitled to do that. The action was sent for a new trial, and the second trial superceded the first, and any finding in the first action was got rid of when the action was sent for a new trial."
I need not I think refer to Venn v Tedesco, another case relied on by Mr Shaw for the plaintiffs. It was a decision of Mr Justice McCardie. All I need say is that there had in that case been a trial before the Lord Chief Justice and a special jury. Although it does not appear from the report I would suspect that there, as here, the jury disagreed. There was then an order for a retrial. Mr Justice McCardie held that the fact that the defendants had abandoned a certain defence at the first trial which was available to them under the Public Authorities Protection Act 1893 did not preclude them from raising the same point at the...
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