Fallon v MGN Ltd
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady |
| Judgment Date | 10 April 2006 |
| Neutral Citation | [2006] EWHC 783 (QB) |
| Date | 10 April 2006 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ04X03333 |
[2006] EWHC 783 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Eady
Case No: HQ04X03333
Andrew Monson (instructed by Ralph Davis) for the Claimant
Richard Hartley QC and Catrin Evans (instructed by Davenport Lyons) for the Defendant
Hearing date: 24 March 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This case requires consideration of the disciplines imposed in the context of pleading a Lucas-Box meaning which is pitched at Level 2 or Level 3 on the scale identified in Chase v News Group Newspapers Ltd [2003] EMLR 11 at [45] and Musa King v Telegraph Ltd [2005] 1 WLR 2282 at [21]-[22]. It may be a somewhat artificial scale in the sense that defamatory words are capable of bearing an infinite variety of meanings and implications and, correspondingly, a range of levels of gravity which do not necessarily lend themselves to classification in one or other of these three categories. "It is not perhaps an entirely satisfactory distinction": per Simon Brown LJ in Jameel v Wall Street Journal Sprl [2004] EMLR 6 at [19]; see also Armstrong v Times Newspapers Ltd [2006] EMLR 9 at [23]-[25]. Nevertheless, the categorisation is currently found useful primarily because it represents a convenient way of identifying what should be pleaded if it is sought to advance a defence of justification to some defamatory allegation falling short of a direct attribution of guilt. Moreover, it appears to have had the imprimatur of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234, 282, 285.
The claim is brought by a well known jockey, Mr Kieren Fallon, against the publishers of Racing Post in respect of an article published on 7 September 2004. The words complained of were spread over three pages. On the first page there was the headline "Rodgers' betting history revealed" and the story was continued inside, on pages 4 and 5, with the further headline "Fallon, Williams, Lynch and Burke all featured in Rodgers' ledger".
As always, context is important and most readers of this specialist publication will have been only too well aware that a number of people, including Mr Fallon, had been arrested a week earlier, on 1 September, by police officers investigating a supposed conspiracy. Indeed, such readers were reminded on page 4 that all the named jockeys had been arrested together with a trainer (Mr Burke), Mr Rodgers (described as the " ex-boss and founder of the Platinum Racing Club"), and eleven other people.
Against that background, it was hardly wise to publish material which could well form part of a prosecution case. Moreover, it is not surprising that the Attorney-General should have expressed his concern at the possible prejudice to the course of justice.
It is necessary to set out the words complained of in full:
" Rodgers' betting history revealed
Platinum Racing boss had 96 per cent strike-rate backing horses to lose
The extent to which Miles Rodgers played and won on the betting exchanges up to the time of his disqualification is revealed today for the first time by the Racing Post.
The ex-boss and founder of the Platinum Racing Club not only bet against members of his own string – horses such as Uhoomagoo, Nimello, Million Percent and Legal Set – but also laid three other horses whose running caused public controversy, namely Ballinger Ridge, Ice Saint and Hillside Girl.
Details of just one of the several accounts that he is believed to have used reveal Rodgers' extraordinary strike-rate during the period from late May last year to March this year.
In the ledger of 59 bets compiled by the Racing Post, Rodgers made 51 bets where he backed a horse to lose – and was right 49 times.
The majority of those "lay" bets were struck on horses ridden by one of the same three jockeys: Fergal Lynch, who rode 15 of the 51 runners laid, Darren Williams, who rode 10, and Kieren Fallon, who rode seven.
On 11 of the 51 times that Rodgers backed horses to
Continued Page 4
[Page 4]
Fallon, Williams, Lynch and Burke all featured in Rodgers' ledger
One or more connected to 33 of 49 winning lays
From front page
lose, Karl Burke was the trainer. Rodgers, Lynch, Williams, Fallon and Burke were among 16 people arrested last week by officers of the City of London police as part of an investigation into conspiracy to defraud.
They have been bailed until November. All deny the allegations.
Rodgers was warned off for two years by the Jockey Club in March after he was found to have laid Platinum Racing Club-owned horses before they lost.
Four of the 51 "lay" bets were on horses owned by the Platinum Racing Club. Of those, one was ridden by Lynch, one by Williams and none by Fallon. The champion jockey has ridden only twice for Platinum since 2003 and was not the subject of a bet by Rodgers on either occasion, according to the list.
Rodgers had control of a Betfair account that turned over £4 million last year and it is his activities that are believed to form a key part of the investigation that the police have stated is "of national significance".
Since last week's dawn raids it has been claimed that the police had put suspects under surveillance and even bugged telephones before making their swoop on 19 addresses. City of London police are declining to comment on such speculation.
A spokesman said yesterday: 'The investigation is ongoing. Some people involved may have chosen to talk about that, but we are not.
'Our officers have not ruled out further arrests, but at the moment they are reviewing what they've got. I wouldn't expect a flurry of information any time soon.
'The arrests were made across the country. Racing takes place across the country. It is national sport, so this is of national significance'.
[Caption]
'Rogers laid Ballinger Ridge (far side) at Lingfield in March when Kieren Fallon was caught close home by Rye (near)'
[Caption]
'Miles Rodgers
Phenomenal strike-rate'"
There was also displayed a table headed "Ten months in the life of a Miles Rodgers account" which listed bets alleged to have been placed by Mr Rodgers between May 2003 and March 2004. This identified the respective dates and horses, and also whether Mr Rodgers had backed the horse in question or placed a "lay" bet (i.e. that the horse in question would lose). It was specified whether he made a profit or a loss (in the vast majority of cases a profit) and it also identified in each case the jockey riding the particular horse. Fourteen were ridden by Mr Lynch, twelve by Mr Williams and eight by Mr Fallon.
The Claimant's meanings are pleaded as follows:
"4. In their natural and ordinary meaning, and/or by way of innuendo, the said words meant and were understood to mean that Miles Rodgers' extraordinary success rate in backing the Claimant's horses to lose must be, or is likely to be, attributable to the fact that the Claimant has conspired with Mr Rodgers to lose, and that the Claimant was thereby guilty of race-fixing and criminal conspiracy to defraud.
(1) In the issues of the Racing Post dated 2 nd and 3 rd September 2004 the Defendant published prominently a series of reports about the arrests of the Claimant and Mr Rodgers which took place on 1 st September 2004. The Defendant reported that the purpose of the arrest by the police was to question them about race-fixing and conspiracy to defraud.
(2) The main report on 2 nd September 2004 was headed 'Race-fixing arrests: KIEREN FALLON ARRESTED' and it bore the sub-headline: 'Champion among 16 detained in race-fixing investigation after dawn raids involving 130 police.' The report went on to state that the Claimant 'was one of 16 detained for alleged conspiracy to defraud'. The report stated that a near year long inquiry into possible race-fixing and passing information for gain had reached a sensational climax. It said that it was understood that the investigation involved more than 80 races. Racing pundit John McCririck was quoted as illustrating the size of the story by telling Sky Television News: 'It's as though we had Michael Schumacher accused of fixing formula One or David Beckham missing penalties deliberately.' The report continued: 'It is thought that the arrests revolve around Rodgers, who controlled a Betfair account last year [that] had a turnover of £4 million'.
(3) As noted in the issue of the Racing Post dated 3 rd September 2004 in an article by David Morgan entitled 'Only Jordan is big enough to keep Fallon off the front page', there was massive coverage throughout the national print media on 2 nd September 2004 of the race-fixing allegations against the Claimant. Such coverage included a front page article in The Daily Mirror, also published by the Defendant, in which the Claimant's head appeared above the headline: 'Internet sparked "race-fix" swoops', and an article on pages 8 and 9 of he same newspaper, which bore the headline 'Betting shopped' above another photograph of the Claimant.
(4) In the premises, the vast majority of the readers of the Racing Post will have known that the alleged justification for the arrest of the Claimant by the police was that he was suspected of fixing races for betting coups. Such readers will thereby have understood the words complained of to bear the meaning set out above."
It has not been suggested that the words are incapable of bearing the Claimant's meanings.
The Lucas-Box meanings are pleaded in the defence at para. 6:
"1. there are reasonable grounds to suspect that the Claimant had conspired with Miles Rodgers to lose races and was thereby guilty of race-fixing and criminal conspiracy to defraud;
2...
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