C. v Mirror Group Newspapers
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE MORRITT,LORD JUSTICE PILL |
| Judgment Date | 21 June 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0621-8 |
| Docket Number | QBENI 95/1032/E |
| Court | Court of Appeal (Civil Division) |
| Date | 21 June 1996 |
[1996] EWCA Civ J0621-8
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Judge Michael Evans QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Neill
Lord Justice Morritt
Lord Justice Pill
QBENI 95/1032/E
The Appellant appeared in person
MR P MOLONEY (Instructed by Davenport Lyons, W1X 2Nl) appeared on behalf of the First Respondent
MR T SHIELD QC and MR J PHILLIPS (Instructed by Oswald Hickson Collier, EC4; Foat & Bowden PL1 2SW and Loosemores, Cardiff) appeared on behalf of the Second, Third and Fourth Respondents
MR A CALDECOTT QC appeared as Amicus Curiae
( )
Friday, 21st June 1996
I shall refer to the former husband of the appellant as the father. The father and the appellant were married on 16 January 1975. The first child D was born on 17 February 1977. He is now 19. The younger child J was born on 7 February 1980. He is now 16.
The parties separated in 1980. Divorce proceedings followed. The decree absolute was dated 24 October 1984. In the divorce proceedings the appellant was given the custody of the two children.
In June 1986 with the approval of the court the appellant took the two children to Tenerife for a holiday. However, she did not return to this country. On 3 October 1986, on the application of the father, an order was made that the two children become wards of court. On 7 November 1986 Hollis J ordered that the children should return. On 16 December Waterhouse J made an order giving interim care and control to the father.
In March 1987 the father went to Tenerife to try to find the appellant and the children. He later reported that they had been "spirited away". It is now clear that in or about March 1987 the appellant and the two children had left Tenerife and travelled to Australia.
At about the end of February 1988 the father received information to the effect that the children might be in Australia. He made an application to the High Court in Swansea relating to the children. The application was supported by an affidavit sworn on 5 November 1987
The matter came before Judge Michael Evans QC sitting as a judge of the Family Division in Swansea. The father appeared in person. At the conclusion of the hearing, which took place in chambers, the judge decided to adjourn into open court and reporting restrictions were lifted. After the adjournment into open court the judge made the following statement:
"Daniel Bryan Witt (17.02.77) and Jamie Peter Witt (07.02.80) are the children of Bryan Courtenay Witt and Lorraine Ann Witt who married on the 16th day of January 1975 at Aldershot in Hampshire. The marriage unhappily ended in divorce and there has been a long history of dispute over the children.
On the 3rd October 1986 by an Application filed at the Swansea District Registry the children were made Wards of Court. By an order dated the 7th November 1986 Mr. Justice Hollis made an order that the wards be returned to the jurisdiction of this Court within 14 days and that the Mother, Mrs. Witt, should disclose her whereabouts to the Plaintiff's Solicitors. This was because it was believed that the wards had left the United Kingdom.
In spite of attempts to find out the whereabouts of the wards from those who would have such knowledge, the children were not found or returned. On the 16th December 1986 Mr. Justice Waterhouse ordered that the interim care and control be committed to Mr. Witt the father, and that the children should be handed over to him and not removed from him without the leave of the Court.
In March 1987 Mr. Witt eventually traced the children to Tenerife and went there to secure the transfer of care and control to him under the order of the Court, having taken all proper steps to enlist the help of the local Courts. To use his words "the children were spirited away from the island" and have not been seen since.
Great concern is now felt about the welfare of these children because we have no knowledge of how they are cared for or for example what education they are receiving, if any. About three weeks ago, Mr. Witt received information that the children might be in Australia. This is the only country, so far as he is aware who has issued a visa for them to enter.
I have adjourned this matter to Open Court in order that I may enlist the help not only of the National Media, but through them all other agencies who may be able to help. I call upon anyone who has any information as to the whereabouts of these children to inform Messrs Douglas Jones and Mercer, Solicitors of St. Helens Road, Swansea. A photograph which is 2 1/2 years old is available, but the children are obviously older and their looks may well have changed.
In the unusual events which have happened, I want to make it plain that the usual restriction on publication of the details of these events does not apply. I have informed Mr. Witt that he is free to discuss with the media or anyone else any details which will enable the court to find where the children are to ensure their safe return to the jurisdiction, and to a final resolution of this troublesome matter."
Following the hearing in court the father spoke to representatives of the press. It also seems clear that he gave an interview on television. In the course of speaking to the press the father made serious and defamatory allegations against the appellant including in particular an allegation to the effect that she was in some way connected with a drugs gang. It is right to emphasise at the outset that this allegation was completely untrue. It was later withdrawn by the father.
Unfortunately, however, the father's allegations against the appellant were published in a number of newspapers. One of the newspaper reports was in the issue of the Daily Mirror dated 22 March 1988. It is not necessary to refer to this report or to the other newspaper reports in detail. It is, however, necessary to mention that the report in the Daily Mirror did not make clear that the words attributed to the father were spoken outside court rather than in the course of the court proceedings. The reports in the other newspapers, and in particular the report in the Western Mail dated 22 March, made it clear that the father had spoken to the press after the hearing in the court in Swansea.
In March 1988 the appellant was working in Australia. When she had arrived in Australia a year before she had been admitted on the basis that she did not take employment.
In March 1988 the appellant received a copy of the Daily Mirror article in Australia. She rang the newspaper in England to complain about it and was referred to a man she believed to be the editor. The appellant did not want the call to be traced as she had "gone to great lengths to avoid [her ] ex-husband and harassment". The appellant says that the editor told her that there was nothing he could do "as they were just repeating what my ex-husband has said in court". The appellant plainly had no intention at that time of commencing proceedings.
The appellant attempted to stay in Australia but fell foul of the immigration authorities there. She was deported to the United Kingdom in December 1990, her children accompanying her. In early 1991 she consulted solicitors who told her that they did not specialise in this area of law but advised her, sensibly it appears to me, that she would need a copy of the transcript of the hearing of 21 March 1988. When she inquired of the court, she was told that no transcript was available.
On 4 July 1991, at the library at Aberystwyth, the appellant examined the relevant articles in the newspapers owned by the second, third and fourth respondents (the Welsh newspapers).
There was a further court hearing with respect to the children before Mr Justice Rattee in Swansea on 12 November 1991. The wardship of the children was continued, with care and control to the appellant and reasonable access to the father. It was at court on that day that the father signed a retraction of his allegation that the appellant had been involved in drug smuggling.
There was then an interval of eighteen months before the appellant wrote letters before action, in June 1993, to each of the respondents. By his clerk, Judge Michael Evans QC wrote to the appellant on 25 August 1993 stating that to the best of his recollection the father had on 21 March 1988 "said nothing in court about drug smuggling nor that Mrs Clare was a drug smuggler".
The appellant issued writs on 21 March 1994. That is of course well outside the ordinary three year limitation period in defamation but just within the six year limitation period for malicious falsehood.
LIBEL
The court has heard submissions from the appellant in person and from Mr Caldecott QC as amicus curiae. To defeat a claim of limitation in defamation, the appellant seeks to rely on s 32A of the Limitation Act 1980, inserted into the Act by the Administration of Justice Act 1985. S 32A provides:
"Where a person to whom a cause of action for libel or slander has accrued has not brought such an action within the period of three years mentioned in section 4A of this Act (or, where applicable, the period allowed by section 28(1) as modified by section 28(4A)) because all or any of the facts relevant to that cause of action did not become known to him until after the expiration of that period, such an action —
(a) may be brought by him at any time before the expiration of one year from the earliest date on which he knew all the...
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