Burstein v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,LORD JUSTICE MAY,LORD JUSTICE ALDOUS |
| Judgment Date | 28 November 2002 |
| Neutral Citation | [2002] EWCA Civ 1739 |
| Docket Number | Case No: A2/2002/1045,Case No: A2/2000/0510 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 November 2002 |
[2000] EWCA Civ J1220-22
Lord Justice Aldous
Lord Justice May and
Sir Christopher Slade
Case No: A2/2000/0510
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
HIS HONOUR JUDGE RICHARD WALKER
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Justin Rushbrooke (instructed by A.J. Brett for the Appellants)
David Price (instructed by David Price & Co for the Respondent)
This is an appeal from judgments and orders of His Honour Judge Richard Walker, sitting as a Deputy Judge of the High Court, on 29 th February and 3 rd March 2000 in a libel action. Brooke LJ gave permission to appeal on paper on 19 th May 2000. The appeal raises questions, of some importance to libel practitioners, relating to the extent to which evidence may be adduced in reduction of libel damages. The appeal arises in curious and, in my view, unsatisfactory procedural circumstances.
The claimant, Keith Burstein, is a musical composer. On 3 rd June 1997, the defendants published in the Diary column of The Times the following short article:
"A Dedication
New Labour and classical music's strident traditionalists will come together in St Paul's Church, Covent Garden, on Friday at the world première of A Live Flame: in memoriam John Smith MP, a concert in honour of the man who might have been Prime Minister. The music is by Keith Burstein, an aggressively self righteous, rather slushy composer who used to organise bands of hecklers to go about wrecking performances of modern atonal music, particularly anything by Sir Harrison Birtwhistle.
Friday's concert will be attended by Smith's widow, Baroness Smith of Gilmorehill, and all members of the Cabinet have been invited. Those wanting to stay in with New Labour's groovie friends in modern design, art and music would do well to make this Burstein gig a one-off."
The claimant considered that the part of this publication that he "used to organise bands of hecklers to go about wrecking performances of modern atonal music" was defamatory of him. After some delay, during which he unsuccessfully complained to the Press Complaints Commission, he brought libel proceedings against the defendants. The defendants did not seek to justify any meaning of the words complained of. They did, however, plead that the words complained of were fair comment on a matter of public interest and they gave extended particulars of fact upon which they said the comment was based.
The action was due to be tried by Judge Walker and a jury on 29 th February 2000. At the outset, the judge raised the question whether the words complained of were amenable to the pleaded defence of fair comment. He ruled that they were not. That ruling is not challenged. To my mind, it is quite obvious that the words complained of were statements of fact, not comment, and I am mystified why the case was allowed to reach the very day of the hearing with that plea intact. Mr David Price, the claimant's advocate, told us that the claimant was concerned about the costs' risk of an application to strike out the defence of fair comment. He also told us that he and the claimant would have been content for the evidence relevant to the defence of fair comment to have been called, and at that stage he might have applied for the defence to be struck out.
The judge having struck out the defence of fair comment, the claimant applied for judgment for damages to be assessed. There was no effective issue but that the words complained of were defamatory of the claimant, and, had the claim been economically conducted with appropriate case management, judgment should have been given much earlier than it was. The question for the judge was whether the claimant's damages should be assessed by the jury or by the judge alone. Apart from agreement, which unfortunately but unsurprisingly was not forthcoming, this question turned on the application of the then very recently introduced sections 8 and 9 of the Defamation Act 1996. These sections provide for summary disposal of a defamation claim. Section 8(3) provides:
"The court may give judgment for the plaintiff and grant him summary relief (see section 9) if it appears to the court that there is no defence to the claim which has a realistic prospect of success, and that there is no other reason why the claim should be tried.
Unless the plaintiff asks for summary relief, the court shall not act under this subsection unless it is satisfied that summary relief will adequately compensate him for the wrong he has suffered."
Section 8(4) sets out matters to which the court is to have regard. Section 8(5) provides that proceedings under section 8 shall be heard and determined without a jury. Section 9(1) provides:
"For the purposes of section 8 (summary disposal of claim) "summary relief" means such of the following as may be appropriate –
(a) a declaration that the statement was false and defamatory of the plaintiff;
(b)an order that the defendant publish or cause to be published a suitable correction and apology;
(c)damages not exceeding £10,000 or such other amount as may be prescribed by order of the Lord Chancellor;
(d)an order restraining the defendant from publishing or further publishing the matter complained of."
Following subparagraphs provide for the parties to agree the details of a correction and apology. If they cannot agree, the court has power to direct the defendant to publish or cause to be published a summary of the court's judgment.
These sections give the court a discretion. The factors relevant to the exercise of that discretion include that the court has to be satisfied that summary relief will adequately compensate the claimant for the wrong he has suffered. Critical to that question is the upper limit of £10,000 which section 9(1)(c) imposes on the damages recoverable under this procedure.
In the present case, the defendants applied to the judge for summary disposal on the basis that the appropriate amount of damages would not exceed £10,000. The claimant opposed the application for summary disposal contending that his damages ought to exceed £10,000 and that it was justifiable to proceed to a full hearing before the jury. This issue was perceived to be affected by, if not to turn on, the question whether the defendants could rely on the facts which they had pleaded in support of their defence of fair comment, now struck out, in the alternative (as they had also pleaded) in reduction of the claimant's damages. In these tortured and unsatisfactory circumstances, the judge heard submissions on this question. He determined that the pleaded facts were not admissible in reduction of the claimant's damages, and he decided against the defendants' application for summary disposal. The assessment of damages therefore took place before the jury upon limited evidence. They awarded the claimant £8,000.
The defendants appeal against:
(a) the judge's decision refusing to allow them to rely in reduction of damages on the facts which they had pleaded in support of their defence of fair comment;
(b) the judge's decision not to order summary disposal; and
(c) the jury's award of £8,000.
The defendants in substance say that, if they had been permitted to rely in reduction of damages on the facts pleaded in support of their defence of fair comment, the jury's award of damages would have been less than £8,000. Thus the main question argued on this appeal has been whether the defendants should have been permitted to rely on the facts pleaded in support of the defence of fair comment. On the other hand, the claimant submits that, even if the defendants had been permitted to rely on those facts, the jury would still have awarded him at least £8,000, or perhaps more. The claimant would have called additional evidence which, in the light of the judge's ruling, he did not call. That evidence would have at least neutralised any apparent diminishing effect of the facts which the defendants wanted to rely on. In addition, it is suggested that any aggressive attack on the claimant would have failed, so that the fact that the attack was made would support a submission to the jury that the claimant's damages should be increased.
The particulars on which the defendants wanted to rely in reduction of damages were as follows:
"1)In about March 1994 the Plaintiff, along with Frederick Stocken, another musical composer whose music, like his own, was tonal, romantic and traditional (in the sense of being pre-modernist) in form, co-founded a group of militant campaigners against modernist atonal music which styled itself "The Hecklers".
) Through The Hecklers the Plaintiff actively and publicly sought to vilify the music which was their target and those who composed it, notably Sir Harrison Birtwhistle. Such behaviour, and especially that in relation to the opera Gawain described below, was deliberately provocative, and was insulting not just to composers such as Birtwhistle but to all those who were connected with the performance of such works and who listened to them for pleasure, both live and in recorded form.
) The Plaintiff's views about this kind of music, and the forcefulness with which he aired them, were (so the Defendant will aver) bound up with the very high opinion he held of his own music, in respect of which he has publicly invited comparisons with that of Mozart, Beethoven, Mahler, Wagner, Elgar, Puccini and Brahms. That opinion was not at that time shared by most members of the musical establishment (critics...
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