Gough v Local Sunday Newspapers (North) Ltd and Another (No. 2); Field v Local Sunday Newspapers (North) Ltd (No.2)
|England & Wales
|Mr Justice Gray
|01 March 2002
| EWHC 336 (QB)
|Queen's Bench Division
|Case No: HQ5964/5/6
|01 March 2002
 EWHC 336 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Gray
Case No: HQ5964/5/6
Mr Patrick Moloney QC and Mr David Sherbourne (instructed by Messrs Peter Carter Ruck for the Claimants)
Mr James Price QC and Mr Rupert Elliott (instructed by Messrs Farrer & Co for the Defendants)
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Mr Justice Gray
These libel actions raise a host of issues. Their number and, in some cases, complexity is reflected in the statements of case which run to more than 460 pages. I will of course address all of those issues in the course of this judgment. But there is one feature of this case which I should mention at the outset. It is a case which has something of a political flavour, at any rate in the sense that underlying it is a continuing dispute between, amongst others, a local newspaper and the Chief Executive of the Borough Council in the area where the newspaper circulates. Moreover the publications complained of relate to a Council election. This has prompted Mr Price to place at the forefront of his argument Article 10 of the European Convention on Human Rights. I have of course borne in mind at every stage of the case the importance to be attached to freedom of expression. I will return to the arguments based on Article 10 at the end of this judgment.
The Claimants in these three actions are (i) Mr Shaun Field, the Chief Executive and Director of Commercial Services of Bedford Borough Council ("BBC"). He is also the Returning Officer for Bedford with responsibility for all elections within the county; (ii) Mr Michael Gough, who at the material time was the Borough Solicitor and is now also the statutory Monitoring Officer of the BBC. He has been a qualified solicitor for 20 years and (iii) Mr Andrew Darkoh, who was born in Ghana but studied law in this country. He worked for a year with the CPS. Since then he has spent most of his time teaching law in the Cayman Islands. He returned to the UK and started work in the BBC Legal Department on 4 April 2000.
The Defendants are the same in all three actions, namely Local Sunday Newspapers (North) Limited, the publishers of the newspaper and Mr Stewart Lister, the local agent of the Conservative Party. At the time of the publications complained of the effective proprietor of the newspaper was Mr Frank Branston, who was also the Chairman of the publishing company. The editor was Mr Stephen Lowe. circulates free in the Bedford area; the circulation is about 110,000 and the readership is several times that figure.
The publications sued on
There are in all four publications sued on. The first in time of these is an article published in on 6 February 2000. The claim in respect of this article has been settled and I say no more about it.
The other three publications are, in chronological order, a press release dated 25 May 2000 and entitled "Maladministration at Bedford Borough Council"; an article published in the newspaper on 28 May 2000 and entitled "Judge passes on recount decision" and a further article in the issue of the newspaper for the 11 June 2000 entitled "Council U-turn on votes Gaffe".
All three Claimants sue in respect of all three publications. Mr Lister is alone sued in respect of the press release. In the case of the two newspaper reports he is sued jointly with the newspaper publishers.
The background facts
The circumstances under which these publications came about were briefly as follows: the Borough Council, Parish and Urban Community Council elections in Bedford took place on 4 May 2000. The Borough Council election involved 18 wards (one of which was the Brickhill ward) and there were 55 candidates. The electorate totalled about 90,000, of whom 29,500 completed ballot papers for the Borough Council election. There were 92 polling stations, each of which returned two ballot boxes. As I have said, Mr Field was the Returning Officer. The person supervising the conduct of the election was Mr Graham Hayes, who had 30 years' experience of dealing with elections. The number of staff required to run the elections was considerable, including 220 presiding officers and polling clerks and 160 deputy returning officers.
Counting of the votes took place at the Corn Exchange. After two recounts, the winner of the Brickhill ward election was declared to be the Conservative candidate, Mrs Susan Evans. Her majority was only 9. Shortly after the declaration, it was discovered that an envelope containing postal ballot papers for the Brickhill ward had been overlooked. The envelope contained 86 postal votes. Those who had cast those votes had therefore been disenfranchised. It was possible that the 86 uncounted votes would affect the outcome of the election for the Brickhill ward (although not the overall majority on the Council).
Having consulted with Mr Gough and obtained his approval, Mr Hayes, Personal Assistant to the Chief Executive, decided to carry out an informal count of the votes in the absence of the candidates and their agents. Having carried out the count, Mr Hayes, on the instructions of Mr Field, informed each of the candidates of the result, which was that the outcome was unaffected but the Conservative majority was reduced from 9 to 6. The BBC issued a press statement acknowledging that a mistake had been made but indicating that it did not appear to have affected the outcome of the election.
No reaction was immediately forthcoming from any of the candidates. But on 16 May, after a council meeting, Mr Stuart Green, the husband of the Liberal Democrat candidate and himself a councillor, and the Leader of the Liberal Democrat Group, approached Mr Field and Mr Gough and told them that they believed it was possible for him as returning officer to make an application for all the Brickhill votes to be inspected and recounted. This appeared to both Mr Field and Mr Gough to be a quick, transparent and cost-effective way of correcting the mistake. Mr Field discussed the proposal with Mr Gough. It was agreed between them that Mr Gough would look into the position and, if he advised that an application could be made without incurring substantial costs, Mr Field would be prepared to pursue it. The next day Mr Green showed a photocopy of rule 47 of the Local Elections (Principal Areas) Rules, 1986 to Mr Gough. Having considered the wording of the rule, Mr Gough concluded that an application could be made. At his suggestion, the Liberal Democrat election agent wrote to Mr Field, telling him that he was considering the submission of an election petition and asking him to apply to the county court for an order to allow a recount to take place.
In the meantime Mr Gough had asked Mr Darkoh to research the proposed application and to draft the necessary documentation. Thereafter discussions as to the correct way to proceed took place from time to time between the two of them. The application was filed at court on 19 May.
The application under Rule 47 was listed for hearing before District Judge Gill on 23 May. Mr Darkoh presented the application on behalf of the Council. Mr Field, in his capacity as Returning Officer, was the applicant. Although the candidates and their agents had been notified in advance of the hearing (as were the public through a press release), they were not made respondents to the application. Amongst those present were Mr Hayes and Mr Lister.
On the first day of the hearing the Judge raised a number of questions, both procedural and substantive, about the application. Mr Lister raised objections to the application. At the instigation of the Judge discussions took place to see whether all candidates would agree that the postal votes alone should be recounted. In the hope that such consent would be forthcoming the application was adjourned until the following day. But the candidates did not agree and on 24 May the Judge again adjourned the application, partly because of the lack of consensus and partly because he had decided that he could not deal with the application because he was a member of the Liberal Democrat party. The Council subsequently discontinued the application. No election petition was in the event presented.
The press release
Such was the background to the first publication complained of, namely the press release which, as he admits, was compiled by Mr Lister and given by him to on 25 May 2000. Since complaint is made of the release in its entirety, it is necessary that I quote it in full adding paragraph numbers for ease of reference:
(a) "MALADMINISTRATION AT BEDFORD BOROUGH COUNCIL
(b) On the insistence of Bedford Liberal Democratic Party, Bedford Borough Council applied to the County Court seeking an order that would allow them to conduct a recount of all the votes cast in the Election of the Councillor in the Brickhill Ward.
(c) As with all hearings in relation to the Representation of the People's Act the hearing had to be an open hearing. Conservative Agent Stewart Lister attended on behalf of Councillor Mrs Susan Evans.
(d) At the first hearing the District Judge reported that he was unable to grant the request of the Council on the following grounds:
(e) The Council was using the Local Elections Principle Area Rules 1986 to mount its case. However, the Law states that only Circuit Judges or higher may deal with these matters.
(f) A district Judge can, however, pass a consenting order and at the first hearing the Council claimed that all interested parties had...
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- Gough v Local Sunday Newspapers (North) Ltd and Another (No. 2); Field v Local Sunday Newspapers (North) Ltd (No.2)