Gordon Bowker (trading as Lagopus Services) and Another v The Royal Society for The Protection of Birds
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Sharp |
| Judgment Date | 25 March 2011 |
| Neutral Citation | [2011] EWHC 737 (QB) |
| Court | Queen's Bench Division |
| Date | 25 March 2011 |
| Docket Number | Case No: 9MA90484 |
[2011] EWHC 737 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Sharp
Case No: 9MA90484
Richard Munden (instructed by Public Access) for the Claimants
Adam Wolanski (instructed by Bird & Bird LLP) for the Defendant
Hearing dates: 21st October 2010 & 5th November 2010
Mrs Justice Sharp:
Introduction
These applications are made in a libel action brought by the Claimants, Mr Gordon Bowker and his wife, Mrs Christine Bowker (trading as Lagopus Services) against the Defendant, the Royal Society for the Protection of Birds (the RSPB). The Defendant applies (a) for a ruling that the words are incapable of bearing the meanings complained of or any meanings defamatory of the Claimants; (b) a ruling that the action, if it reaches a trial, should be tried by judge alone; (c) a ruling that there be summary judgment for the Defendant, alternatively that the claim be struck out as an abuse of the process.
The Claimants specialise in grouse fieldwork, research and captive breeding of black grouse. The Defendant is a very well-known charity responsible for the conservation of birds and is the largest wildlife conservation organisation in Europe. Dr Murray Grant and Dr Ian Johnstone are both Principal Conservation Scientists at the Defendant, and Dr Timothy Stowe is the Director of the Defendant in Wales. In October 2007 Dr Grant was a Senior Research Biologist and Dr Johnstone was a Research Biologist both with the RSPB.
The claim arises out of the publication in October 2007 of three documents (written separately by Dr Grant, Dr Johnstone, and Dr Stowe) by the Defendant, all of which contained critiques of a peer-reviewed scientific paper about black grouse
conservation published in September 2007 in a scientific journal called Wildlife Biology, written by the Claimants together with Dr David Baines. The action was begun in 14 April 2009. There is no issue on limitation because extensions to the limitation period were agreed, while attempts were made to settle the dispute between the parties.
Mr Richard Munden who appears for the Claimants complained at the start of the hearing that in certain respects the Claimants did not have proper notice either of the grounds on which the applications were made, or of the matters relied on in support of them. Though some additional further evidence was served by the Defendant shortly before the hearing began, I consider that generally, the Claimants had sufficient notice of both the nature of the applications and the evidence relied on in support. In addition, Mr Adam Wolanski who appears for the Defendant said he was content for there to be an adjournment if the Claimants needed one, but Mr Munden declined that invitation. Be that as it may, the case before me has proceeded in fits and starts. The time estimate agreed by the parties of 1 day was insufficient. Mr Wolanski had not even concluded his opening submissions by then. It was then adjourned for a further day; but submissions were not completed on that day either. By agreement, the Claimants' submissions and the Defendant's reply to them were then completed in writing; and over the subsequent weeks both sides provided further written submissions, replies to them, and indeed further evidence. I should add I do not criticise the parties for the time taken: there was a great deal of ground to cover. But if therefore the Claimants were under any initial disadvantage, they subsequently had an opportunity to consider the Defendant's case, as it was made before me and to answer it.
Events leading to the publications complained of
Severn Trent Water (STW) is the owner of the land around and including Lake Vyrnwy in North Wales. The RSPB manages that land for STW and has at all material times had a contractual responsibility for the conservation of birds, including black grouse at Lake Vyrnwy. Black grouse are a UK red listed species; that is, a species with the highest conservation priority. Between 1997 and 1999 the Defendant retained the First Claimant, Mr Bowker by a series of short-term contracts to carry out grouse fieldwork in Central and North Wales as part of its Welsh Black Grouse Recovery Project (the Recovery Project). Between 2000 and 2003 the Defendant advised on a project run by the Claimants and funded by STW called the Severn Trent Water Lake Vyrnwy Black Grouse Project (the STW project).
The Defendant's written brief for the STW project was, amongst other things, to advise on the scientific validity of the work being carried out: see the project proposal by Dr Johnstone entitled: "Project title: population size, productivity and dispersal of black grouse at Lake Vyrnwy RSPB Reserve over three years." As part of that brief, the Defendant provided scientists to advise on the work being undertaken by the Claimants.
In 2004/5 as a result of their work on the STW project, the Claimants wrote a report for the STW (the STW report); and a paper based on the STW report co-authored by Dr David Baines of the Games and Wildlife Conservation Trust (GCT) formerly the Game & Conservancy Trust. It is common ground that in 2005 the Claimants submitted the paper for publication to the journal, Bird Study, but it was rejected after being sent to Dr Gibbons of the Defendant and an independent reviewer unconnected with the Defendant for peer review. In September 2007 however the paper was published in the peer-reviewed journal, Wildlife Biology and I shall refer to it therefore as the Wildlife Biology paper.
The Claimants' conclusions in the Wildlife Biology paper were that there was a very low chick and juvenile survival rate of black grouse in the Lake Vyrnwy population, that these low survival rates were largely attributable to raptor and fox predation, and that in consequence, the black grouse population at Lake Vyrnwy had declined.
It is part of the Defendant's case that the matters raised by the Claimants in the Wildlife Biology paper were of direct concern and interest to the Defendant given their responsibility for the conservation of black grouse at Lake Vyrnwy; and it was anticipated by many within the Defendant that the Wildlife Biology paper would generate public debate and controversy about the conservation work carried out by the Defendant on the nature reserve managed by the RSPB at Lake Vyrnwy.
On 14 September 2007 the GCT issued a press release about the Wildlife Biology paper, the terms of which had been approved by STW. In the press release serious concerns were expressed about the Welsh black grouse population. It stated that the Claimants' research had "clearly identified" with "compelling evidence" the effect that predation by raptors and foxes was having on black grouse at Lake Vyrnwy.
The three publications complained of were published in the weeks following the issue of the press release. They are: (a) an email from Dr Grant, (the Grant email) sent on 5 October 2007 which had as its subject the Wildlife Biology paper (which is referred to in the email as the "The bowker et al paper"); (b) a critique of the Wildlife Biology paper written by Dr Johnstone which was sent as an attachment to the Grant email. It was entitled "A critique by RSPB Conservation Science of: Bowker, G. Bowker C, & Baines, D (2007) Survival rates and causes of mortality in black grouse tetrao tetrix at Lake Vyrnwy, North Wales, UK. Wildlife Biology (13(3))" which I shall refer to as the RSPB Critique; and (c) a letter from Dr Stowe of 16 October 2007 (the Stowe letter) to Andy Warren of STW and copied to Tim Wright of STW.
The words complained of
The Grant email was addressed to internal RSPB recipients (principally members of its Black Grouse email list): and 16 other named recipients within the RSPB. It is complained of in its entirety, and says as follows:
"Subject: The Bowker et al paper
Dear all – many of you by now will be aware of the Bowker et al paper that has recently been published (Bowker, G. Bowker, C. & Baines, D. (2007) Survival rates and causes of mortality in black grouse tetrao tetrix at Lake Vyrnwy, North Wales, UK. Wildlife Biology 13(3)). This paper stems from a 3 year study that Gordon Bowker undertook (funded by Severn Trent Water) on our Lake Vyrnwy reserve a few years ago. We were always uncomfortable with this work, and were very concerned about the field methods employed by Gordon. The work was initially written up as an unpubl rept for Severn Trent Water (STW), but was then 'adopted' by David Baines of the GCT who pulled out some of the data and analysed them to produce a scientific paper. RSPB were sent this paper in draft to allow us to comment on it, which we did, expressing very grave concerns to GCT. However, these views did not dissuade GCT from proceeding to submit this paper for publication.
To help us address the issues and likely problems that we may face following its publication, Ian Johnstone has put together a very useful critique of the paper that will be very helpful to those of us who are likely to be faced with questions and comments arising from the paper's publication. This critique is attached. At least for the moment this should NOT be circulated externally, but please do use the information provided within it to deal with the issues that may arise. I do not have an electronic copy of the paper itself, but hard copies can be obtained by contacting Alix Middleton at SHQ (who has kindly agreed to do this until the journal issue arrives at our library).
A particular point of concern in this study is that it adopted very high disturbance methods, which could conceivably have led to the high...
To continue reading
Request your trial
-
ASIA HONOUR PAPER INDUSTRIES (M) SDN BHD vs VIRIDIS ENGINEERING SDN BHD
...The number of these is limited.” 26. Further, in Bowker (t/a Lagopus Services) & Anor v Royal Society for the Protection of Birds [2011] EWHC 737 (QB), Sharp J in the Queen’s Bench Division opined that readers of email should be taken to have read the “[41] The Defendant submits that as Dr ......
-
Frank Sinton v Maybourne Hotels Ltd
...He relies on the analysis of Sharp J (as she then was) in Bowker (t/a Lagopus Services) v Royal Society for the Protection of Birds [2011] EWHC 737, [123]–[127]. The question is whether the communication is of such a nature that it could fairly be said that the maker had an interest in maki......
-
Tilting at Windmills: the Defamation Act 2013
...For the Common Good: Principles of American Academic Freedom(New Haven, Ct: Yale University Press, 2009).56 Thus, in Bowker vRSPB [2011] EWHC 737 (QB), the defendant was sued in respect of emailscritical of a paper written by the claimant. In BCA vSingh [2010] EWCA Civ 350 CA; [2011] 1WLR 1......