Greene v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 05 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1462 |
| Docket Number | Case No:2004/2194 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 November 2004 |
[2004] EWCA Civ 1462
Lord Justice Brooke
Vice-President of Court of Appeal (Civil Division)
Lord Justice May
Lord Justice Dyson
Case No:2004/2194
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Fulford
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Spearman QC (instructed by Farrer & Co) for the Appellant
Andrew Caldecott QC and Catrin Evans (instructed by Reynolds Porter Chamberlain) for the Respondent
| PART I | Para No | |
| 1. | Introduction | 1 |
| PART II | ||
| 2. | The Procedural Background | 3 |
| 3. | The Facts | 5 |
| 4. | The Judge's Conclusions on the Facts | 20 |
| 5. | Counsel's Arguments Before the Judge | 24 |
| 6. | The Judge's Conclusions on the Law | 32 |
| 7. | The Effect of the New Evidence | 34 |
| PART III | ||
| 8. | The Law of Prior Restraint in Defamation Actions: the Beginnings | 42 |
| 9. | The Law of Prior Restraint in Defamation Actions: the Modern Law | 51 |
| 10. | The Law of Prior Restraint in Defamation Actions: the Rationale of the Rule | 57 |
| PART IV | ||
| 11. | The Effect of the Human Rights Act 1998 | 58 |
| 12. | Section 12(3) of the Human Rights Act 1998 | 59 |
| 13. | Section 6 of the Human Rights Act | 67 |
This is the judgment of the court.
PART I
In this country we have a free press. Our press is free to get things right and it is free to get things wrong. It is free to write after the manner of Milton, and it is free to write in a manner that would make Milton turn in his grave. Blackstone wrote in 1769 that the liberty of the press is essential in a free state, and this liberty consists in laying no previous restraints on publication. "Every freeman", he said, "has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press" (Commentaries, Book 4, pp 151–2). It is this freedom which is under challenge in this appeal. Mr Richard Spearman QC has argued before us that the enactment of the Human Rights Act 1998 has significantly weakened the inhibitions that judges should feel before imposing prior restraint on the press. This was a surprising proposition, but it deserves careful analysis.
In Part II of this judgment we describe what this case is all about. In Part III we describe why the courts have shrunk from restraining publication of a defamatory libel unless it is clear that there is no defence. And in Part IV we will explain the challenge that has been made to the approach the judges have adopted in this country and explain the reasons why we decided at the end of the hearing that the claimant was not entitled to the prior restraint of The Mail on Sunday which she sought.
Part II
The Procedural Background
This is an appeal by the claimant Martha Greene from an order of Mr Justice Fulford on Saturday 16 th October 2004 when he refused to grant her an injunction restraining an article which the defendants proposed to publish about her in The Mail on Sunday. Although the judge refused her the relief she sought, he granted her a temporary injunction so as to hold the position until the hearing of her appeal to this court. For that purpose he granted permission to appeal.
The judge announced his decision at about 6 pm that day, because that was the printing deadline for the following day's Mail on Sunday, and the costs implications of a later decision prohibiting publication were very considerable. Counsel's submissions had concluded shortly before that hour, and because there was insufficient time for him to deliver an extempore judgment, he simply informed the parties of his decision and the outline reasons for it. He made his written judgment available to them before 9 am the following Monday. In it he apologised for the fact that he had not had the time to research and prepare his judgment in the usual way, with the result that it was short and lacked the benefit of thoroughgoing analysis. In these circumstances it was a model of its kind, and the parties and this court have good reason to be grateful to him for making his judgment available so speedily.
The Facts
We can take the facts, as they stood on 16 th October, from the judge's admirably clear recitation of them.
The background to this application begins with an article published in The Mail on Sunday on Sunday 10 th October 2004, which was written by Laura Collins and Sharon Churcher. The focus of the piece is revealed in the opening paragraph:
"The woman at the centre of the Blairs' £3.6 million house deal is a former business contact of convicted fraudster Peter Foster, The Mail on Sunday can reveal. Martha Greene has become one of Cherie Blair's closest friends and confidantes and was entrusted with the role of go-between when, earlier this summer, the Blairs bought the property in Connaught Square, central London."
A little later the article continues:
"Martha Greene, the 48-year-old New Yorker who runs the Villandry Restaurant and Foodstore in London's Great Portland Street, was, like Foster, introduced to Cherie by her lifestyle 'guru', Carole Caplin. The women have known each other for six years, during which time Greene has seemingly supplanted Caplin as Cherie's 'new best friend'."
The authors then purported to quote from Peter Foster, who claimed that he had discussions with Martha Greene about Reneulle: "a slimming firm through which (Foster) planned to market Trimmit diet pills". The article then contained this passage:
"Of course, any claims made by Foster must be treated with a degree of caution. But e-mail communications between Foster and Greene, seen by this newspaper, support his account. In one, dated November 6, 2002, Greene wrote to Foster: 'As discussed, happy to assist you with the development of your Reneulle business in UK. I don't need a fancy title, as you suggested, just a consultant would suit me fine.
I would require a set fee of US$15,000, if possible paid to my account in the US …. Can we do this without the need to UK-based invoice through your overseas company? Would be helpful?'"
On 15 October 2004, the claimant's solicitors, Messrs Farrer & Co, wrote to Mr John Wellington, who is the Managing Editor of The Mail on Sunday. Their letter contained, among other things, the following objections to the article:
"The piece is littered with inaccuracies, some material, some less so. It is unnecessarily intrusive, for instance into her personal relationships and misuses what is clearly confidential medical information about her membership of and attendance at Alcoholics Anonymous, as well as her treatment for breast cancer. There can be no conceivable justification for putting this information into the public domain.
The sting of the article is, however, to be found in your attempts to link our client to Peter Foster……. Our client has met Peter Foster on no more than six occasions between October 2002 and January 2003 and not otherwise. They were predominantly social events. She did not send Foster the e-mails you attribute to her. She did not have any form of business with him."
On the same day Sian James, the Features Editor of The Mail on Sunday, wrote to the claimant's solicitors in a letter which crossed with their letter and did not purport to respond to it. Her letter contained the following passage:
"Thank you for your help with last week's article. A further email has come into our possession which raises a number of points. We would be grateful for your response by 12 noon tomorrow so that we can include it in the article we are preparing for this Sunday's Mail on Sunday.
In an email you sent on Friday January 31, 2003 to Peter Foster, you say:
'I would like you to give some thought to our suggestion of selling your diet aids over the internet. As you know, we are both very excited about the potential of the internet and its global reach. Ivan has the expe(r)ience with the structuring of a web site that is interactive and also how to advertise on the net.'
Can you confirm that you are planning to enter into business with Peter Foster selling his slimming aids on the internet?"
She then proceeded to ask a number of questions about the contents of the alleged e-mail, which appeared to evidence Miss Greene's willingness to get herself involved with Mr Foster on his proposed business venture in a way which evaded British advertising standards, associated the Prime Minister's family with the venture, and minimised its tax liabilities. She did not respond to the claimant's solicitors' letter after she received it.
The claimant's solicitors replied the same day. The writer maintained and repeated the firm's earlier representations about what was said to be the misuse of private information and referred to a "wholly erroneous and defamatory link between our client and Peter Foster", before going on to emphasise the suggested falsity of the claim that there had ever been a business relationship between Mr Foster and Miss Greene. The firm's representations are unequivocal: "Foster's claims, as published by the Mail on Sunday are a fabrication". The letter continues:
"The simple answer to the questions raised in your letter is that Foster is lying to you in suggesting that our client sent him an email on 31 January 2003. If Foster has provided you with what he claims to be an email from our client to him dated 31 January 2003, then it is a forgery and your paper is about to be duped and to dupe its readership in the event that you publish his...
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