Grobbelaar v News Group Newspapers Ltd

JurisdictionUK Non-devolved
JudgeLORD BINGHAM OF CORNHILL,LORD STEYN,LORD HOBHOUSE OF WOODBOROUGH,LORD MILLETT,LORD SCOTT OF FOSCOTE
Judgment Date24 October 2002
Neutral Citation[2002] UKHL 40
Date24 October 2002
CourtHouse of Lords
Grobbelaar
(Appellant)
and
News Group Newspapers Ltd

and Another

(Respondents)

[2002] UKHL 40

Lord Bingham of Cornhill

Lord Steyn

Lord Hobhouse of Woodborough

Lord Millett

Lord Scott of Foscote

HOUSE OF LORDS

LORD BINGHAM OF CORNHILL

My Lords,

1

In November 1994 The Sun newspaper published a series of very prominent articles charging the appellant, a well-known premiership goalkeeper, with corruption. He promptly issued writs claiming damages for libel. After some delay caused by an intervening criminal prosecution of the appellant and others, these libel proceedings came before Gray J and a jury. The jury found in favour of the appellant and awarded him compensatory damages of £85,000. On the newspaper's appeal against this decision the Court of Appeal (Simon Brown, Thorpe and Jonathan Parker LJJ) set it aside as perverse and entered judgment for the newspaper: [2001] 2 All ER 437. At issue in this appeal to the House is the correctness of the Court of Appeal's decision.

2

It has been common ground throughout these proceedings that the newspaper's articles referred to the appellant and were defamatory of him. There has also, unusually, been agreement between the parties on the defamatory meaning borne by the articles complained of. This meaning, as pleaded by the appellant in his statement of claim and admitted by the newspaper in its defence, was that the appellant

"(a) having dishonestly taken bribes had fixed or attempted to fix the result of games of football in which he had played and

(b) had dishonestly taken bribes with a view to fixing the result of games in which he would be playing."

This compendious statement, on which the conduct of the proceedings by both parties has necessarily turned, expresses two linked but separate allegations. The first is that, having dishonestly taken bribes, he had actually fixed or attempted to fix (ie deliberately lost or attempted to lose) games of football in which he had (in the past) played. The second is that the appellant had dishonestly accepted bribes with a view to fixing (ie deliberately losing) games of football in which he would (in future) be playing. I shall in this opinion use the expression "fix" to mean "deliberately lose".

3

The appellant's case at trial was that he had never dishonestly accepted any bribe, had never made a corrupt agreement to fix or attempt to fix any game of football and had never in fact fixed or attempted to fix any game.

4

The burden of justifying the agreed defamatory meaning of the words published lay, as in any libel action, on the publisher of the words, here the newspaper (and its editor, whose position calls for no separate consideration). But the trial judge correctly directed the jury that the newspaper did not have to prove the truth of every sentence or paragraph of the articles it published, and he continued:

"What The Sun has to do in order to succeed with this defence is to establish the substantial truth of the defamatory charges or accusations published about Mr Grobbelaar. That is why I drew your attention a moment ago to what the admitted defamatory meanings of the articles are. It is the substantial truth of those defamatory meanings which The Sunhas to prove to be true. In other words, the The Sun has to satisfy you of the substantial truth of the message that Mr Grobbelaar dishonestly took bribes and fixed or attempted to fix matches, those being the meanings which, as I have told you, are agreed.

What that means, members of the jury, is that you must be satisfied by the evidence that the dishonest taking of bribes to fix the outcome of matches was something that Mr Grobbelaar did or at least was prepared to do or to try to do. As I say, the defence will not fail because you are not satisfied that the defendants have proved every alleged incident of dishonest bribery or every meeting or conversation on which they rely, provided that they have proved to your satisfaction sufficient [incidents] on or off the pitch for you to conclude that the charge against Mr Grobbelaar in those articles is substantially justified.

Let me just expand a little further on what I mean by substantial justification or substantial truth. Suppose (and it is just a hypothesis to help you) you were to conclude that Mr Grobbelaar did indeed agree to take bribes and took bribes from the short man and later on agreed to take bribes and took a bribe from Mr Vincent but that for one reason or another he did not actually do anything in any match by way of attempting to fix the result by deliberately letting in goals; just suppose that was your conclusion on the evidence; but then you would want to stand back and ask yourselves: 'Are we satisfied, having arrived at that conclusion, that what was published about Mr Grobbelaar was substantially true?' The arguments might then be this: Mr Hartley [counsel for Mr Grobbelaar] might say, and indeed has said, that if there was no match that was actually fixed, that Mr Grobbelaar did not let in any goal deliberately, then that is a fatal flaw, says Mr Hartley, in the defence of justification and it should fail.

Not so, says Mr Carman [counsel for the newspaper]; if it is established by the defendants that there were corrupt agreements then the sting of the articles is justified and the defence of justification should not fail, says Mr Carman, because the defendants cannot point to a particular match where there was any goal deliberately let in. I hope that helps you on what is meant by 'substantial truth' and of course it is your province; you are the people who decide whether the substantial truth of the article has been made out."

Towards the end of his jury direction the judge turned to the issue of damages, which he related to the issue of substantial justification:

"But there is one important rider that I want to add, members of the jury. It is this. Supposing you were to come to the conclusion that you were not satisfied that the articles are substantially justified in the sense that I have explained to you, so that the plea of justification does not actually succeed, but you were to conclude that the defendants have proved a significant part of their case. For example, suppose, and this is just an example to try and illustrate the principle that I am trying to explain, you were to conclude that The Sun have proved the willingness of Mr Grobbelaar to enter into a corrupt agreement with Mr Vincent to fix matches [for] £2,000 a fortnight, or whatever it was, but you are not satisfied on the evidence that there was any corrupt agreement with the short man. Just suppose you come to that conclusion. Well, you might think: Well, here is a man who has, on our view of the evidence, been shown to have entered into a corrupt conspiracy, the one with Vincent, although not the one with the short man. Now, that, too, can be reflected in your award of damages, because you might in that situation feel it appropriate to reduce any award you might otherwise make quite significantly to reflect the fact that in good part what was published was true. So, that would be a reason for reducing perhaps - it is a matter for you - very, very significantly any amount of damages. But, of course, if you decide that the articles are substantially justified then of course you do not get to damages at all, so this is just an example to help you understand the way it works."

In accordance with the modern practice the judge made reference, for purposes of comparison, to prevailing levels of personal injury damages and gave the jury some assistance on the bracket within which, depending on its findings, damages (if awarded at all) might fall:

"At the top end in a case of this kind you might think that an award of £150,000, something of that order, might be justified. At the lower end - but it all depends, really, on your view of the evidence. If you were to conclude that this is a case where a significant part of the defence of justification has been made good even if the defence does not succeed, then you might want to come up with a very small award indeed, I do not know. So the lower end of the bracket comes quite low if you feel that to a significant extent the case has been proved against Mr Grobbelaar."

5

Before all the courts seised of this case it has been forcefully argued on behalf of the newspaper that the sting of the articles published lay in their very clear accusation that the appellant had corruptly agreed to fix and had accepted payment for fixing matches and that whether he had actually fixed matches or attempted to do so was a matter of relatively minor significance. In argument before the House, the first extract from the judge's jury direction quoted in the preceding paragraph was criticised by the newspaper for its failure to put the newspaper's version of the sting to the jury as the true and only sting. The Court of Appeal, I think, treated the newspaper's version of the sting in this way. I would for my part accept, without hesitation, that the newspaper's version of the sting could well be understood as expressing the real thrust of the articles. It is unnecessary to recite extracts from the articles themselves to make good that proposition. They were replete with references to corrupt agreements allegedly made by the appellant and to his corrupt acceptance of money. The judge would certainly have been wrong not to leave this version to the jury and a reasonable jury could well have accepted it. But the judge was also right to leave the appellant's version of the sting to the jury for its consideration. It is again unnecessary to make detailed reference to the articles. On the first day of publication on this subject the newspaper's headline on its front page was "GROBBELAAR TOOK BRIBES TO FIX GAMES" and its first paragraph read: "Soccer star Bruce...

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